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What Employers Need to Know About Employee Verification
Requirements: Recent Changes to Form I-9 and Challenges Posed
by a Natural Disaster
By: Ashley N. Ward-Singleton,i FordHarrison LLP
Executive Summary: Although immigration has been a hot political topic lately, employers’
obligations to comply with the Immigration Reform and Control Act of 1986 (“IRCA”), 8 U.S.C. §
1324a, have remained consistent for the last few years. As most employers know, they must
verify the work authorization of all employees by reviewing documentation that establishes the
employee’s identity and authorization to work in the U.S. On July 17, 2017, the U.S. Citizenship
and Immigration Services (USCIS) revised Form I-9, Employee Eligibility Verification, and its
Handbook for Employers: Guidance for Completing Form I-9 but made very few substantive
changes to the Form I-9 requirements. In addition, in the aftermath of Hurricane Harvey, the
USCIS issued guidance to employers about how to verify employment eligibility if a newly hired
employee claims that his or her verification documents have been destroyed. As explained
below, employers will want to implement the Form I-9 changes by September 18, 2017, and
apply the USCIS’s recent guidance to avoid both civil and criminal penalties.
Revisions to Form I-9
The IRCA amended the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq., and set forth
a framework prohibiting employers from knowingly hiring, recruiting, referring, or continuing to
employ unauthorized workers. Form I-9 and E-Verify, “an internet-based system that compares
information from Form I-9 to government records,” provide a means by which employers can
confirm that an employee is authorized to work in the United States. https://www.uscis.gov/i-9-
central/about-form-i-9/e-verify-and-form-i-9.
Beginning September 18, 2017, employers must use the latest version of Form I-9, reflecting a
revision date of “07/17/17 N.” Each of the July 17, 2017, revisions are discussed below.
However, the most significant change is the addition of the Consular Report of Birth Abroad
(CRBA) (Form FS-240) as one of the acceptable documents under List C, “Documents that
Establish Employment Authorization.” A CRBA is given to a child born abroad to a U.S. citizen
parent to document that the child is a U.S. citizen. This document can be used to obtain a U.S.
passport, register for school, and now for employment authorization. With the addition of the
CRBA, the USCIS combined all of the certifications of report of birth issued by the Department
of State (Form FS-545, Form DS-1350, and Form FS-240) into one selection under List C.
Given this change, all of the List C documents except the social security card were renumbered.
Additionally, the USCIS made revisions to the Form I-9 instructions including changing the
name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to
Immigrant and Employee Rights Section and removing the phrase “the end of” from the phrase
“the first day of employment.” By removing the phrase “the end of,” the revised Form I-9 now
requires that the form be completed on the first day of employment without any reference to the
time of day.
While these changes may seem minor, they can impact whether an employer is in compliance
with the law.
A Natural Disaster’s Impact on Employment Eligibility Verification
Despite the devastation of natural disasters, employers are still obligated to verify the identity
and eligibility of new employees. The USCIS issued a fact sheet immediately following the
aftermath of Hurricane Harvey. Although the USCIS fact sheet specifically refers to Hurricane
Harvey, the guidance contained therein is consistent with the USCIS’s long-standing position on
employees whose verification documents have been lost, damaged, or stolen. Employers
affected by Hurricane Irma or any other natural disasters will want to comply with the USCIS’s
very specific explanation for how to document the verification process in such circumstances.
As indicated in the fact sheet, “[t]he Department of Homeland Security will continue to enforce
all laws, rules, and regulations related to employment verification with respect to individuals and
employers affected by Hurricane Harvey.” U.S. Citizenship and Immigration Services, Fact
Sheet – Form I-9 and E-Verify Guidance for Those Affected by Hurricane Harvey (2017).
Typically employers are required to physically examine an employee’s documents within three
business days of the employee’s first day of employment in order to complete Section 2 of Form
I-9. However, if an employee’s documents are lost, stolen, or damaged, the employee may
present a receipt showing that he or she has applied for a replacement document. The receipt
is valid for 90 days from the date of hire, and the replacement document must be presented to
the employer within that time.
If an employee provides an acceptable receipt, the employer should:
• Record the document title in Section 2 under List A, List B, or List C, as
applicable;
• Write the word “receipt” and the document title and number in the Document
Number space; and
• Write the last day that the receipt is valid in the Expiration Date field.
When the replacement document is received:
• Cross out the word “receipt” and any accompanying document number and
expiration date;
• Record the number and other required document information from the actual
document presented; and
• Initial and change the date.
For employers who also use the E-verify system, the employer cannot create a case in E-verify
if the employee presents a receipt for a replacement document. The employer must wait until
the employee presents the replacement document before creating a case in E-verify. At that
time, E-verify will prompt the employer to enter the reason for the delay. “When E-verify asks
for the reason why this case has not been submitted within three business days, select ‘Other’
and type ‘Receipt provided. Awaiting actual document’ in the field provided.”
Additional information, along with the rules governing receipts, can be found in the Handbook
for Employers. https://www.uscis.gov/i-9-central/handbook-employers-m-274.
Conclusion
The recent changes to Form I-9 should help employers with verification by providing employees
an additional acceptable document to provide to an employer. Moreover, the rules related to
acceptance of a receipt for a replacement document when an employee’s documents are lost,
damaged, or stolen provide employers with a temporary alternative for employee verification.
Employers must remain current and diligent in their employee eligibility verification process
because, despite natural disasters, the Department of Homeland Security will continue to
enforce all requirements related to employment eligibility verification, and failure to ensure
compliance could result in serious consequences for employers.
i If you have any questions about your company’s I-9 or E-Verify process, please feel free to contact
Ashley N. Ward-Singleton at (813) 261-7819 or awardsingleton@fordharrison.com.