I-9/E-Verify

By: Dave Fowler

The direction provided in the instructions for the Form I-9, the Handbook for Employers (M-274), and the E-Verify User Manual for the employment date in Section 2 could provide more specific. Consequently, there are different interpretations used by entities such as employers, E-Verify Designated Agents, electronic I-9 service providers, ICE, USCIS, and OFCCP. Wouldn't it be nice if everyone used the same definition!

I propose that the rule for the employment date in Section 2 should be the following:

The employment date in Section 2 may be the current date (the date Section 2 is signed) or a prior date, but it cannot be a future date.

Here is the rational for this definition.

1. The language in the cerfication statement in Section 2 says 'that the employee began employment on (month/day/year)                  '  Words have meaning and this language says began rather than will begin. Therefore, the language indicates that the date should be the current date or a prior date and not a future date.
2. Since the signatory is attesting that the information in Section 2 is accurate, using a future date requires the signatory to attest to an event that has not yet occurred. Since there is no way to guarantee the employee will actually start work on a future date, it does not make sense to attest to a future event by entering a future date in Section 2.
3. E-Verify will not accept an employment date that is in the future. Since E-Verify, the government's free system that employers can use to verify a new hire is authorized to work in the U.S., does not accept a future date, it makes sense to not enter a future date in Section 2 of the Form I-9.
4. There are basically two reasons for entering a prior date in Section 2 of the Form I-9.
   1. The employer has three work days do complete Section 2 of the Form I-9 for a new hire. Therefore, the employment date could be prior to the Section 2 signature date.
   2. If the employer identifies that an employee is missing a Form I-9, the employer should complete a Form I-9 as soon as possible. In this situation, the employment date in Section 2 will be more than three days prior to the Section 2 signature date.

One other point, there is really no relationship between the Section 1 and the Section 2 signature dates. However, the Section 1 signature date must be the same or prior to the Section 2 signature date. The employee should complete Section 1 before or at the same time the employer completes Section 2.

By the way, the employment date in Section 2 MUST be completed when the employer signs Section 2. The Form I-9 instructions state that employers must record in Section 2 the date employment begins. Some employers, especially in the staffing industry, leave the employment date blank and when the employee is placed in a position the employment date is entered. This is not compliant and is a very dangerous practice that would likely be considered to be a substantial violation in the event of an ICE audit. Substantial violations have a high likelyhood of resulting in penalties against the employer. This practice also results in the employment date in Section 2 being a future date since the date would be after the Section 2 signature date.

If you use the rule proposed above you should have compliant employment dates in Section 2 of your Forms I-9.

Good luck!

Dave Fowler