Form I-9 is used by employers to verify the identity and employment authorization for individuals hired to work in the U.S. Two common errors that employers often make on the I-9 form are the following: employers either fail to perform reverification, or employers perform late reverification of the employee’s work authorization. Below are some common questions regarding I-9 reverification of temporary nonimmigrant workers.
What is reverification?
The USCIS Handbook for Employers specifically states that an employer must reverify an employee’s employment authorization using Section 3 on the I-9 form if the employee’s temporary employment authorization, or EAD, has expired. Reverification is the process of ensuring your employee is still authorized to work by examining acceptable unexpired documents provided by your employee and filling out Section 3 of the I-9 form.
When should I perform reverification?
Reverification must occur no later than the date the employment authorization expires. For example, if the employee has a STEM OPT EAD that is about to expire on February 1, 2020, the employer must reverify the employee before or on that date so that the employee can continue working.
What does the employee need to show upon reverification?
Upon reverification, the employee must present a document that shows current employment authorization, such as a List A (permanent resident card, EAD card, foreign passport with Form I-94 and containing an endorsement to work, etc.) or List C document (such as an unrestricted social security card). It is important to note that an employer cannot continue to employ an employee who cannot provide proof of current employment authorization.
Do I need to reverify if my employee has a green card?
No. Employers should never reverify if the employee has a U.S. Passport or Passport Card or a Permanent Resident Card (Form I-551).
My employee is an F-1 student with an OPT EAD card which is about to expire. What should I do?
For the employee to continue employment, the employer should reverify an employee whose OPT EAD card is about to expire. If the employee receives an extension of the EAD prior to the date of expiration, the employer should record the document title, document number, and new expiration date in Section 3.
My employee is an F-1 student on OPT and I filed an H-1B petition in the lottery. Can the employee continue to work? How do I reverify in this situation?
If the employer files an H-1B petition with a start date of October 1st while the student is in F-1 status participating in post-completion OPT, that student will receive a cap-gap extension of their F-1 status and their OPT work authorization. If the H-1B petition is selected in the lottery, or is eventually approved, the student will have work authorization as an F-1 student with OPT work authorization until September 30th.
To reverify in Section 3 during the student’s cap-gap period, the employer should record the EAD document title, EAD document number, the date the EAD expired in the expiration date space, and write “CAP-GAP” in the Additional Information field.
My employee has an H-1B that is about to expire and the company is going to file an extension. How do I reverify the employee in this situation?
An individual on H-1B has work authorization for 240 days after the expiration of the H-1B if the employer timely files a bona fide H-1B extension petition before the expiration date. In this situation, to reverify you should write “240-Day Ext.” and enter the date Form I-129 was submitted to USCIS in the Additional Information field in Section 2 of the I-9. The employee may update Section 1 by crossing out the expiration date of their employment authorization noted in the attestation, and may write in the new date that the automatic extension of employment authorization ends. If the employee does this, they should initial and date this update in the margin of Section 1. The employer then must reverify in Section 3 once the decision on the H-1B petition is received.
Employers have witnessed a tremendous increase in U.S. Immigration and Customs Enforcement (ICE) I-9 audits. In order to avoid federal sanctions in the face of an I-9 audit, employers should ensure all I-9 eligibility forms are properly completed and retained. To guarantee full compliance with federal regulations, employers should always implement proper hiring processes and procedures and provide I-9 compliance training to those responsible for the hiring and retention of the company’s employees.
For more information regarding Reddy & Neumann P.C.’s I-9 Compliance Team and our services, please click here: https://rnlawgroup.com/i-9-compliance.
By: Kristina M. Hernandez
Kristina is an associate attorney at Reddy & Neumann, P.C. She was admitted to the State Bar of Texas in 2011. Her practice includes representing companies and individuals with employment-based visa petitions and applications and advising clients regarding litigation options in federal court pursuant to the Administrative Procedures Act (APA). Kristina also guides employers to ensure compliance with all Form I-9 requirements by conducting internal audits of clients’ records, processes, and procedures.