I-9, E-Verify, Managing Visa Employees

All U.S. employers must complete a Form I-9 for a new hire to verify that the new hire is eligible for employment in the U.S.

Origin of I-9 Process

  • The Immigration Reform and Control Act of 1986 (IRCA)
  • Imposed administrative sanctions for Form I-9 hiring and verification violations.
  • Made it unlawful to knowingly hire or continue to employ unauthorized aliens.
  • The goal was to remove the “magnet” of employment that drives illegal immigration.

Who needs to Complete an I-9?

  • Apply to all employees hired on or after November 6, 1986.
  • Not required:
    • Hired before November 6, 1986.
    • Casual domestic worker in a private home on a sporadic, irregular, or intermittent basis.
    • Independent contractors.
    • Employees of employee leasing company.

The I-9 Process. 

The following graphic from USCIS is a good illustration of the process:

When to complete Section 1?

  • As early as: You have offered the individual the job, and
  • The individual has accepted the offer
  • Before Date of Hire – On employee’s first day of employment (actual day an employee starts working for wages or compensation)
  • Example: A blank I-9 form can be included in the “orientation” packet with health insurance enrollment form, W-4, A-4, etc.

Complete Section 1

Employee’s responsibilities to complete:

  • Last name, first name, MI
  • Other name (maiden name)
  • Address
  • Date of Birth
  • Social security number (Not optional if employer uses E-Verify)
  • Email and telephone number
  • Check the “right” box
  • Signature and Date
  • Preparer and translator certification (if applicable)

Employer’s responsibilities to:

  • Review the information
  • Ensure employee provided all required information
  • Ensure employee signed and dated the form
  • Ensure the prepare/translator certification has been completed (if applicable)
  • Check if the employee’s work authorization has an expiration date
  • Check if that expiration date matches what’s in section 2
  • Reminder employee of re-verification (if applicable)

Complete Section 2

Employer must complete section 2 as early as employee has accepted job offer, but no later than 3rd day of date of hire.  If the employee starts on a Monday, Section 2 must be completed by Thursday.

Employee must present document to verify that he/she is eligible to work in the U.S. by submitting either one List A document, or one List B plus one List C document.

List A documents are documents that establish Both Identity and Employment Authorization:

  • U.S. Passport or U.S. Passport Card
  • Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
  • Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine readable immigrant visa
  • Employment Authorization Document that contains a photograph (Form I-766)
  • Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record, and containing an endorsement to work
  • Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A
  • List B documents are documents that establish identity only: Driver’s License
  • ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
  • School ID card with a photograph
  • Voter registration card
  • U.S. military card or draft record
  • Military dependent’s ID card
  • U.S. Coast Guard Merchant Mariner Document (MMD) card
  • Native American tribal document
  • Driver’s license issued by a Canadian government authority

Acceptable List B Documents for individuals under the age of 18 who are unable to present a document listed above:

  • School record or report card
  • Clinic, doctor or hospital record
  • Day care or nursery school record

List C documents are documents that only establish employment authorization.

  • U.S. Social Security account number card that is unrestricted
  • Consular Report of Birth Abroad (Form FS-240)
  • Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545)
  • Certification of Report of Birth issued by the U.S. Department of State (Form DS-1350)
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal
  • Native American tribal document
  • U.S. Citizen ID Card (Form I-197)
  • Identification Card for Use of Resident Citizen in the United States (Form I-179)
  • Employment authorization document issued by the Department of Homeland Security (DHS)

Complete Section 3

Employers must complete Section 3 when the employee’s employment authorization or documentation of employment authorization has expired (“reverification”).

Employers may complete Section 3 when:

  • The employee is rehired within 3 years of the date that Form I-9 was originally completed.
  • The employee has a legal name change.

There is no need to complete List 3 and reverify employment authorization of:

  • U.S. citizens and noncitizen nationals
  • Lawful permanent residents who presented a Form I-551, Permanent Resident or Alien Registration Receipt card for Section 2. This includes conditional residents.

E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).

E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. Employers may also be required to participate in E-Verify if their states have legislation mandating the use of E-Verify, such as a condition of business licensing. Finally, in some instances employers may be required to participate in E-Verify as a result of a legal ruling.

E-Verify, which is available in all 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and Commonwealth of Northern Mariana Islands, is currently the best means available to electronically confirm employment eligibility.

The follow states are mandatory E-verify states.  Employers in these states must participate in the E-verify program:

  • Alabama
  • Arizona
  • Georgia
  • Mississippi
  • North Carolina
  • South Carolina
  • Tennessee
  • Utah

Visa Employee Policy

Most companies will benefit from having a clear visa employee policy that is available to all stakeholders in the company and visa employees.  Having a clear visa employee policy manage expectations of all parties involved.  The policy may also answer questions such as when the green card process will start, who would pay for a trip to a U.S. consulate to obtain a visa, etc.

A visa employee policy typically covers the following:

  • HR and employee responsibilities
  • Requirements to receive work visa and green card sponsorship, such as
    • Certain level of employees only
    • Satisfaction of employment
    • Approval by management at a certain level
  • Costs
    • Who bears the costs internally for visa sponsorship, or which cost center will be charged?
    • What are visa employees expected to pay?
      • It is important to address the cost early on.  A visa employee may have come from an employer who would pay for all costs and may be surprised to learn that he/she is responsible for certain fees.
      • Most employers manage costs associated with hiring and retaining visa employees in the following manners:
        • Pay for all expenses for both employee and family
        • Pay only for expenses associated with the employee and not the family
        • Pay only for is legally required to pay, and employees are to pay for other expenses.
  • Timing to start green card sponsorship
  • Any expectation of employment post-issuance of green card

Coordination between recruiters and H.R. department

To ensure a smooth hiring process of a visa employee, recruiters and the H.R. department work best to coordinate their effort.  The following consideration should be made prior to extending an offer or setting up a start date:

  • Expectation of processing time
  • Document collection – turnaround time affects processing greatly
  • Government processing time
  • Whether premium processing is available
  • Qualification of employee
  • Current immigration status of employee
    • Change of status?
    • Transfer?
    • Out of status?
  • Special requirements for the visa category
    • Wage level
  • Is it easy to obtain a detail job description?
  • Is there an org chart?
  • Some visa categories require additional time and internal posting

Working closely with immigration counsel to lessen the burden of managing visa employees

Except in large companies, most H.R. teammates manage immigration processes, in addition to other responsibilities, such as payroll, OSHA, and other federal compliance.   As such, having reliable immigration counsel can be of great benefits to the H.R. professional who manages visa employees.  We routinely provide our clients the following services:

  • Case reports of all visa employees
  • Track work authorization expiration dates
  • Consult with recruiters and H.R. on potential new hire who require visa processes
  • Provide legal updates relevant to the employers
  • Handle all preparation as permitted by law
  • Provide I-9 training and audit
  • Provide annual visa updates to stakeholders

If we can provide any of the above reference services to you, please do not hesitate to contact us. 

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