The U.S. Citizenship and Immigration Services has been experiencing delays in processing applications due to COVID-19; because of this, employers may encounter employment authorization gaps as well as employees presenting unusual documentation for Form I-9 that employers are unfamiliar with handling. This has presented many potential pitfalls for employers in completing the I-9 process.
First of all, many employers are currently questioning what they can do with the Form I-9 if an employee is temporarily without authorization for employment. The answer is that this will depend on the situation. If the employer simply chooses to fire the employee without rehiring them, the employer will simply need to maintain compliance with the documentation retention requirements of the Form I-9. This is that employers must retain a former employee’s Form I-9 for the later of three years from the date of hire or at least one year from the date on which the employment was terminated.
Should an employer terminate and then choose to rehire such an employee once they regain their work authorization, there will be two possible situations. In the first, if the employee is being rehired within three years of the date on which you last completed a Form I-9 for the employee, then you may proceed by using Section 3 of the employee’s previous I-9. Should Section 3 of the employee’s previous Form I-9 already have been used once, but the date is still within three years of the form being completed, then section 3 on a new Form I-9 may be completed and attached to the form that was previously completed.
Another issue many employers are dealing with is when an employee presents an expired document or receipt notice. When this occurs, there are multiple potential results. With only a few exceptions, the documents provided for Form I-9 cannot be expired. However, there are a few exceptions, and the first is for expired permanent resident cards presented with a Form I-797 which extends the validity of the card for 12 months from the expiration date on the card.
In some cases, a Form I-797 may serve as an acceptable document for Form I-9 when it shows that an employee is failing to replace a missing or damaged EAD. In this case, the document will be valid for 90 days from the date of hire or for reverification purposes from the date of the employment verification’s expiration. After this, the employee must present suitable documentation.
These issues can be confusing for many employers now more than ever, and the best way to handle them is with an electronic I-9 management tool. This can help guide employers through every step of the process and ensure that all documents for Form I-9 documentation are properly maintained, kept up to date, and ready for review at any point for inspection.