I-9/E-Verify

By: Dave Fowler

I don’t know about you, but I can’t believe it's February already!

I just received guidance from USCIS in response to the following question.

When can an E-Verify case be created when a receipt is used for Form I-9?

I understand this question was recently discussed at an AILA (American Immigration Lawyers Association) get together and the consensus was that an E-Verify case should be created when Form I-9 is completed, even when a receipt is used for Form I-9.

How would you answer this question?

The guidance from USCIS is that an E-Verify case should NOT be created prior to updating the Form I-9 with the employee’s actual document for which the receipt was presented.

What’s the explanation?

As you know, the E-Verify Memorandum of Understanding (MOU) instructs an employer to run E-Verify queries “upon completion of the Form I-9.”  In other words, Form I-9 must be completed (per USCIS definition of completed) before an E-Verify case can be created. According to USCIS, the presentation of a receipt does NOT complete the Form I-9 process and thereby freezes the three-day period for completing Form I-9. During this period, the employee continues to work while his or her Form I-9 is being completed. (i.e., resolved) The E-Verify case should be created within three days from when the employee presents the actual document for which the receipt was presented. So, the core issue is the definition of when a Form I-9 is completed. According to USICS, a Form I-9 is not completed until a receipt presented by the employee is updated with the employee’s actual document for which the receipt was presented.

Why not create the E-Verify case earlier?

Well, creating an E-Verify case for a Form I-9 completed with a receipt can be problematic with E-Verify.

·         E-Verify requires the employee to present a photo ID for Form I-9. Not all receipts contain a photograph. Therefore, creating an E-Verify case without a photo ID is contrary to the requirements of the MOU.

·         If the receipt is for a document subject to E-Verify photo matching, the employer is not able to attest that the photograph displayed by E-Verify matches the photo on the employee’s document. If E-Verify does not return a photograph, employers are instructed to indicate that the photo on the employee’s document matches. However, the E-Verify instructions do not address the situation where E-Verify returns a photograph, but the employee’s document does not contain a photograph. Therefore, completing the photo matching requirement without a document that matches the photograph presented by E-Verify is contrary to the requirements of the MOU.

·         If the employer indicates that the photos do not match, the employer does not have a document that can be forwarded to DHS to resolve the E-Verify case if the employee contests the photo matching result. Not being able to process a referral for a photo matching DHS TNC is contrary to the requirements of the MOU.

So, while your employees may not routinely present receipts for Form I-9, you should protect yourself by ensuring your internal procedures as well as your electronic Form I-9 and/or E-Verify solution is compliant.