Completing Form I-9, "Employment Eligibility Verification," is a critical step in the hiring process for employers in the United States. This form is used to verify the identity and employment authorization of individuals hired for employment in the U.S. But what happens when an employer discovers they have hired someone whose I-9 form has expired?
Understanding Form I-9
Form I-9 is issued by the U.S. Citizenship and Immigration Services (USCIS). It helps employers confirm that:
- The new hires are legally permitted to work in the U.S.
- Their identity matches the documents provided.
Key sections of Form I-9 include:
- Section 1: Employee Information and Attestation - to be completed by the employee no later than the first day of employment.
- Section 2: Employer Review and Verification - to be completed by the employer within three business days of the employee’s start date.
- Section 3: Reverification and Rehire - for re-verifying work authorization after expiration of work authorization documents.
💡 Note: Form I-9 itself does not expire, but certain documents used for verification have expiration dates.
Hiring with an Expired I-9
The Consequences
Hiring individuals with expired I-9 documentation or failing to re-verify employment authorization can result in:
- Fines per violation which can be substantial.
- Potential legal consequences, including criminal charges.
- Reputational damage to the company.
Employer Responsibilities
If an employee's authorization to work expires:
- Reverification: The employer must reverify employment authorization before the document's expiration.
- Documentation: Update or complete Section 3 of Form I-9 if necessary.
✅ Note: Employers should have a system in place to track document expiration dates to avoid non-compliance.
Steps to Manage Expired I-9 Documents
1. Review Current Forms
Employers should:
- Audit their I-9 forms to identify any employees with soon-to-expire or expired documents.
2. Re-Verification
If employment authorization documents have expired, follow these steps:
- Notify the employee about the need to reverify their documents.
- Provide the employee with a list of acceptable documents for re-verification (List A, B, and C).
- Have the employee provide new documentation before the current authorization expires.
📌 Note: Employers must not ask for specific documents; the employee can choose from the list.
3. Complete Form I-9 Updates
Update Section 3:
- Record the date of re-verification.
- Write in the document title, number, and expiration date if provided.
4. Document Retention
Form I-9 must be retained for:
- Three years after the date of hire or one year after the date of termination, whichever is later.
📅 Note: Retain Form I-9 and related documents in a secure manner to protect against unauthorized access.
Common Scenarios
Scenario 1: Employee’s Work Authorization Expires
If an employee’s work authorization document expires, you must:
- Request new documentation proving continued work authorization.
- Complete Section 3 of Form I-9 or attach a new Form I-9.
Scenario 2: No Expiration Date
Some documents do not have expiration dates (e.g., U.S. passports, birth certificates). For these:
- There is no need for re-verification unless the employee terminates and is rehired.
✍️ Note: Employees with indefinite authorization do not need re-verification unless rehired.
Federal Audits and Inspections
The U.S. Immigration and Customs Enforcement (ICE) may conduct audits or inspections to ensure compliance with immigration laws, which includes:
- Verification of Form I-9 completion.
- Checks for unauthorized workers.
If an audit finds expired or missing documentation:
- Employers might be subject to civil and criminal penalties.
⚠️ Note: ICE can issue fines and penalties retroactively for noncompliance issues.
Training and Best Practices
To avoid issues with I-9 compliance:
- Conduct regular training sessions for HR staff.
- Use tracking systems for document expiration dates.
- Establish clear procedures for re-verification and hiring processes.
💪 Note: Continuous education on immigration compliance is vital for HR professionals.
In Summary
The process of hiring with expired I-9 documents involves understanding and adhering to employment eligibility verification rules set forth by the USCIS. Employers must ensure timely re-verification of documents to maintain compliance, which not only avoids penalties but also fosters a compliant and ethical work environment. By establishing effective systems for I-9 form management, conducting regular audits, and educating staff on the importance of timely document re-verification, employers can reduce risks associated with expired I-9 documentation.
What happens if an employer fails to re-verify an employee’s work authorization?
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Failing to re-verify work authorization can lead to fines, potential legal action, and damage to the company’s reputation.
Do all documents listed on Form I-9 require re-verification?
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No, only documents with expiration dates need re-verification. Documents like U.S. passports or birth certificates do not expire, hence no re-verification is required unless the employee is rehired after termination.
What should I do if an employee refuses to provide new documents for re-verification?
+If an employee fails to provide new documentation, the employer should inform them of the consequences of non-compliance, which could lead to termination if the authorization to work expires.
