At Ross Silverman, we are experienced at handling worksite compliance and enforcement matters, representing clients who are subject to government investigations by the U.S. Department of Homeland Security, Department or Labor and ICE, and defending undocumented workers who are placed in immigration removal proceedings.  We provide advice, counseling and representation in the following areas:  Comprehensive Worksite Enforcement & Compliance Policies; I-9 Training & I-9 Compliance Programs; and I-9 Audits.  Please see our website for the full range of legal services that we provide in this area.

Following are some common questions and answers about completing the I-9 form: 

Q.  How do I complete Form I-9 for employees who work offsite or remotely? 

A.  There are a number of options for dealing with offsite employees: you may require that they report to headquarters to present their documents; you may have the I-9 completed by a regional manager, hiring manager, recruiter, or another designated employee; or you may designate an agent or notary public to fill out the Form I-9 on your behalf.  The designated agent must complete the entire Form I-9, ensuring that the employee properly completes Section 1 on or before the first day of work, and verifying the employee's identity and employment authorization documents to complete Section 2 within the first three business days of the start of employment.  You remain responsible, however, for the Form I-9 and will be liable for any violations as a result of the agent's actions in completing the form and verifying the employee's identity and work authorization.

Q.  I have an employee in H-1B status for whom we filed an extension of status with USCIS, but we have not yet received the official receipt notice, and his current H-1B expires next week.  How do I properly complete Form I-9 for this employee?

A.  You must first update Form I-9 by writing in the margin next to Section 2 "240-day extension" and recording the date that the Form I-129 H-1B extension was received by USCIS.  You must then re-verify in Section 3 once you receive the USCIS approval notice, or by the end of the 240-day period, whichever is first.  You also should retain the following documents with the employee's Form I-9: a copy of the new Form I-129; proof of payment of the filing fee; and evidence that you mailed the Form I-129 to USCIS, including the Form I-797 receipt notice once that is received from USCIS.

Q.  I filed an H-1B change of status petition for an employee who is currently in F-1 status working on Optional Practical Training (OPT).  The OPT expires in June, but the H-1B start date is not until October 1.  Can I continue to employ this person or will the student have to go off payroll?  If I can continue to employ him/her, how do I complete the I-9?

A.  You may be able to continue employing this person without interruption.  If the H-1B petition was filed to request a change of status while the student was in valid status during the OPT period, the student will be eligible for an automatic "Cap-Gap" extension of both F-1 status and work authorization.  The student must have his or her I-20 endorsed by the designated school official and this, along with the student's expired employment authorization document (EAD card), constitute an acceptable List A document and should be recorded in Section 2, or Section 3 if re-verifying, on Form I-9.  You must again re-verify employment authorization at the end of the cap-gap period, which would typically be October 1st (i.e. once the H-1B takes effect).  

NOTE:  Cap-Gap extensions are only available for students who are requesting a change of status on the I-129 petition.  Further, students who are in F-1 status at the time of filing the H-1B petition but whose OPT has expired (i.e. the student is in his or her grace period) are eligible for an extension of F-1 status (meaning they may remain in the country) but not work authorization, and therefore will not be authorized to work until the H-1B status goes into effect on October 1st.

Q.  Do employees have to provide their Social Security Number (SSN) in Section 1?

A.  No.  Providing an SSN is voluntary for all employees, unless your company participates in the USCIS E-Verify Program, in which case it is required.

Q.  Do I need to update or re-verify an employee if he or she changes their name?

A.  You are not required to update the I-9 form if an employee changes their name.  However USCIS recommends that employers note any name changes on Section 3 of the form.  The employee is not required to provide documentation of their name change, but you can accept such evidence and keep it with the I-9 form.

Q.  Can I accept a receipt as a List A, B, or C document?

A.  Yes, in certain circumstances.  Page 6 of the new I-9 Handbook provides a useful chart that indicates what types of receipts can be accepted, and how long they are valid.  Please note, however, that a receipt indicating that an individual has applied for an initial EAD or extension of an EAD is not acceptable proof of employment authorization for I-9 purposes.

Q.  Can my company use an electronic I-9 system?

A.  Employers may use paper or electronic systems, or a combination of the two, as long as the electronic system includes the following: reasonable controls to ensure the integrity, accuracy, and reliability of the system; reasonable controls designed to prevent the unauthorized or accidental deletion of an I-9 record; a quality assurance program that periodically checks electronically stored I-9s; indexing system that permits the retrieval of relevant documents and records; and the ability to reproduce legible and readable paper copies.