Form I-9 and E-Verify - Employers & Employees Responsibility

Written by: Stephanie Burford, PHR, M.S., HR Manager at Advisor HR

The Form I-9 and E-Verify are foundational tools in a compliant and responsible hiring process. They help protect organizations from legal liabilities while ensuring employers build a workforce that is lawfully authorized to work in the United States. Employers are required to be compliant and establish a good faith effort by documenting their process when it comes to filling out the Form I-9 and completing E-Verify.  Although Form I-9 and E-Verify serve related purposes, they function in different ways, and both have distinct legal requirements.

Form Updates

The actual Form I-9 was recently updated, reflecting a new expiration date of 5/31/2027. According to e-verify.gov, key updates include:

1.        Renaming the fourth checkbox in Section 1 to “An alien authorized to work”

2.        Revising the descriptions of two List B documents in the Lists of Acceptable Documents

3.        Adding appropriate statutory language and a revised DHS Privacy Notice to the instructions

E-Verify.gov goes on to explain that employers should note:

1.        If an employee attests on Form I-9 as “A noncitizen authorized to work,” the employer must select “An alien authorized to work” in E-Verify.

2.        E-Verify cases will display "An alien authorized to work," while employees and employers may continue to see "A noncitizen authorized to work" on Form I-9, depending on the form edition being used.

3.        E-Verify+ participants will see the updated 01/20/25 edition date and 05/31/2027 expiration date reflected in Form I-9NG.

More information can be found at: https://www.e-verify.gov/about-e-verify/whats-new/minor-changes-toformi9andeverifyupdates#:~:text=The%20revised%20Form%20I%2D9,valid%20until%2005%2F31%2F2027 

Form I-9

According to the M-274 USCIS handbook, anytime an employer hires a person to perform labor or services in the United States in return for wages or other remuneration, an I-9 must be completed. Both employees and employers have a responsibility when filling out the document, and it must be done correctly.

Employers Responsibility:

1.        Provide Employee the Most Current Form I-9 (available from uscis.gov): Ensure the employee receives the instructions electronically or in print and completes Section 1 of Form I-9 on their first day of employment.

2.        Review Section 1 for Accuracy: Ensure all required fields are filled out and signed.

3.        Complete Section 2: This must be completed within 3 business days by physically examining original, acceptable, and unexpired documentation, or an acceptable receipt, that the employee presents. Determine if the documentation reasonably appears to be genuine and relates to the person presenting it. Employers must allow the employee to choose which documentation they will present from the List of Acceptable documents. Employers may not suggest or offer advicthe e on what documents to provide.

4.        Retention of Documents: Retain all copies of the documentation reviewed, but return original documentation to the employee.  Retain the form for three years after the date of hire or one year after employment ends. Whichever is later.

5.        Reverification: Reverify work authorization when needed

6.        Prepare for Audit: Once the form is complete, the form must be made available for inspection if audited. This form should be filed away in a separate file, binder, or electronic file. Not in the employee's file itself.

Employees’ Responsibility

1.        Day 1: Complete all required fields under Section 1 of Form I-9 on the first day of employment. Social Security number is optional, unless the employer participates in E-Verify, this is a required section. 

2.        Attest Information is True & Correct: Sign and date the form

3.        Provide Original Documentation: Present original, acceptable documents based on List A or List B and C within three business days of starting work.

4.        Provide Updated Documentation (if needed): Employees are responsible for providing updated documents for temporary work authorization.

Remote Employees:

Remote examination is possible. However, the employer must participate in E-Verify and be in good standing, even if the state does not require the employer to use E-Verify by law. Additionally, the employer should not treat employees differently based on their citizenship, immigration status, or national origin by deciding that certain employees are not eligible for remote examination of their documentation.

Employers who choose to examine their employees’ documents remotely and are in good standing with E-Verify, should complete the following steps according to the M-274 handbook:

1. Examine Documents (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine.

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3. Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction.

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5. Check box on Form under Additional Information: Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification in Supplement B, as applicable.

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7. Retain Copies: Retain a clear and legible copy of the documentation (front and back if the documentation is two-sided).

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E-Verify

E-Verify is a free, internet-based system that is run by the U.S. Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). This system provides employers peace of mind. In addition to the Form I-9, the E-Verify system is an electronic process which verifies that new hires are legally authorized to work in the United States. The information entered into E-Verify is pulled directly from the employees Form I-9 and compared with federal records. The turnaround time is typically instantaneous.

There are many pros to using E-Verify even if your state does not require it:

-              Catches false or fraudulent employee documents

-              Reduces the risk of hiring unauthorized workers

-              Strengthens employers’ compliance in the event of an I-9 audit

While it is not legally required for all states to participate, it is a recommended best practice that protects your business.

Advisor HR’s platform offers a streamlined I-9 process. While Advisor HR does not fill out the Form I-9, physically review documentation, or submit E-Verify cases, we provide a platform that offers the capability to complete all documents on time through the electronic onboarding process. The system will then file the form away in a separate electronic, specific I-9 folder in the employee’s profile. Using the I-9 software feature has a 180-degree connection with E-Verify, so employees and employers can complete the I-9 process all in one platform. It is important to note that although the process is done online, employers must physically review original copies of the employees’ documents before completing their portion. Interested in learning more about the I-9 feature? Reach out today!

Resources:

M-274 Handbook: https://www.uscis.gov/book/export/html/59502