How to Complete Form I-9 Section 3: Updating and Reverification
Form I-9 is Required
Every employer must complete a Form I-9 each time it hires any person to perform labor or services in the United States in return for wages or other remuneration. This requirement applies to everyone hired after November 6, 1986.
Employees complete Section 1 of Form I-9 when they begin work. The employer certifies its review of the employee's work authorization documents in Section 2 of Form I-9 within 3 business days of the first workday. If the employer hires a person for less than 3 business days, Sections 1 and 2 of Form I-9 must be fully completed when the employee begins work.
Form I-9 Exceptions
The employer does not complete a Form I-9 for persons who are:
(1) Hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times;
(2) Employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
(3) Independent contractors; or
(4) Providing labor for the employer who are employed by a contractor providing contract services (e.g., employee leasing or temporary agencies);
(5) Not physically working on U.S. soil.
Forms I-9 employment eligibility verification and employer sanctions law compliance is the Employer’s Responsibility. It is unlawful for any employer to "knowingly hire or continue to employ" unauthorized workers. Actual knowledge that the worker is not employment authorized is not required to establish employer liability. Employers are liable for "constructive knowledge" that an employee is not authorized for employment. "Constructive knowledge" may be fairly inferred if through the exercise of reasonable care a person should or would have known that the employee was not authorized for employment; or the employer deliberately fails to investigate the facts.
It is critical that not only the company’s Employer Sanctions Compliance Manager (often an "HR supervisor" or "bookkeeper" thoroughly understands not only how to properly complete Forms I-9, but also that company owners, executives, managers, and supervisors understand lawful Form I-9 employment eligibility verification practices and procedures. Companies and individuals face civil fines and criminal penalties, including imprisonment if their Forms I-9 documents are not properly completed, and retained.
Documents Evidencing Temporary Employment Authorization
When the employee presents a document indicating temporary employment authorization the employer must subsequently re-verify the employee's employment authorization before the document expires. The Employer Sanctions Compliance Manager uses Section 3 of the Form I-9 employment eligibility verification or Section 3 of a new Form I-9. The employer must re-verify an employee’s employment authorization on Form I-9 not later than the date the employee’s employment authorization expires.
To maintain continuous employment authorization, an employee with temporary employment authorization should timely file for new employment authorization or an extension of stay prior to the expiration of his/her current document or authorized period of stay. If an employee has timely filed for new employment authorization and USCIS fails to adjudicate that application within 90 days, the employee will be granted an employment authorization document for a period up to 240 days.
The employee must present a document that shows either an extension of his/her initial employment authorization or new employment authorization. If the employee cannot provide the employer with proof of current employment authorization (e.g., any document from List A or List C, including an unrestricted Social Security card), the employer cannot continue to employ that person.
Exception: Do not re-verify List B identity documents, such as a driver’s license.
The employer may not consider a future employment authorization expiration date in determining whether an alien is qualified for a particular job may constitute employment discrimination.
Reverifying Employment Authorization for Current Employees
When an employee’s employment authorization expires, the employer must re-verify his/her employment authorization before the document expires. The employer may use Section 3 of Form I-9, or, a new Form I-9.
The employee must present a document that shows either an extension of the initial employment authorization or new employment authorization. If the employee cannot provide the employer with proof of current employment authorization (e.g., any document from List A or List C, including an unrestricted Social Security card), the employer cannot continue to employ that person.
Reverifying or Updating Employment Authorization for Rehired Employees
When the employer rehires an employee, the employer must ensure that s/he is still authorized to work. The employer may re-verifies on a new Form I-9, or by updating that employee’s original Form I-9 by completing Section 3.
If the employer rehires an employee who has previously completed a Form I-9, the employer may re-verify on the employee’s original Form I-9 only if:
(1) The employer rehires the employee within 3 years of the initial date of hire; and
(2) The employee’s previous grant of employment authorization has expired, however, but s/he is now eligible to work under a new grant of employment authorization; or
(3) The employee is still eligible to work on the same basis as when the original Form I-9 was completed.
To re-verify the employer must:
1. Record the date of rehire;
2. Record the document title, number and expiration date (if any) of the document(s) the employee presents;
3. Sign and date Section 3; and
4. If the employer is re-verifying on a new Form I-9, write the employee’s name in Section 1.
To update the employer must:
1. Record the date of rehire and the employee’s new name, if applicable;
2. Sign and date Section 3; and
3. If the employer is updating on a new Form I-9, write the employee’s name in Section 1.
The employer may complete Sections 1 and 2 on a new Form I-9 instead of completing Section 3 when rehiring employees.
You must complete a new Form I-9 if the version of the form you used for the previous verification has since been replaced by a newer version.
Reverification of Employment Authorization for Current Employees and Rehires
Record the employee’s new name, if applicable, and date of rehire, if applicable.
Record the document title, number, and expiration date (if any) of document(s) presented.
Sign and date.
The employer may also fill out a new Form I-9 in lieu of filling out this section.