HR Guide: I-9 Verification & Reverification for Foreign National Employees
The federal government requires all U.S. employers to complete I-9 verification for all of their employees - domestic or foreign nationals. Here are some questions that we hear from employers around I-9 verification:
My company uses E-Verify. Do I need to still do an I-9 verification?
Yes. You still have to complete the I-9 verification even if you use E-Verify.
My company is very small. Do I need to do an I-9 verification?
Yes. You are required to complete a Form I-9 for each employee that works for you in the U.S..
When should I do the I-9 verification?
Employee completes Section 1 on their first day of work
Employer completes Section 2 by the end of third business day
Where can I download the latest version of Form I-9?
You can download the latest version of the Form I-9 from USCIS' website.
What documents do I need to verify?
You can find an exhaustive list of documents on the page 4 of Form I-9 under the "List of Acceptable Documents" but just as a general rule-of-thumb, you should check the following documents for foreign national employees -
Current Unexpired Passport - to verify identity
Latest I-94 - to verify status expiration. You can read more about it in this article.
Latest I-20 - if the employee is on CPT, OPT or STEM OPT
OPT card - if the employee is on OPT or STEM OPT
EAD card - if the employee is working on an Employment Authorization document
There can be many combinations of documents that need to be checked based on what an employee can provide and their status. You should consult your immigration counsel for edge cases.
Unlike domestic employees, foreign national employees have expirations on their work authorization status. Therefore,
Employers should track the expiration date associated with the employee's work authorization and reverify I-9 forms.
Let's look at some scenarios here -
Intern on CPT (F-1 visa)
Verification - You would need to check the employee's latest I-20 issued by the school. The I-20 should have a start and end date for the time that the employee will work for you during the internship.
Note - If you want them to extend the period of internship then they would need to go back to their university to get a revised I-20 with the new expiration date.
Reverification - you will have to reverify the I-9 using the updated I-20 provided by the university.
Employee on OPT or STEM OPT (F-1 visa) EAD cards
Verification - When an employee starts with you on an OPT or a STEM OPT, you would need to check their OPT card (Employment Authorization Document) and track the expiration date of the card.
Note - an employee moving from OPT to STEM OPT needs to fill out an I-983 before they can apply for an extension. It's a good idea to follow up with the employee on the extension process at least 3 months before expiration.
Reverification - Once the employee has a STEM OPT, you would then need to do a reverification of the I-9 with the new OPT card.
Employee on work visa (H-1B, H-1B1, L-1A, L-1B, E-3, TN)
Verification - When an employee starts with you on a work visa, you would need to check two things -
Visa Approval - this can be in the form of an I-797 (Approval Notice)
I-94 - this is a document generated by Customs and Border Patrol (CBP) and shows the date of status expiration. You can read about it in this article.
Note - the date to track is the earlier date between the I-797 and the I-94.
Reverification 1 - Whenever the employee on a work visa leaves and returns to the U.S., CBP will generate a new I-94 for them. You will have to complete an I-9 reverification to make sure that the last expiration date that you had on record hasn't changed.
Reverification 2 - Whenever the employee renews their work visa, you should do an I-9 reverification and track the expiration date.
Employee on a different Employment Authorization
Verification - When an employee starts working on an EAD (Employment Authorization Document) then you will have to track the expiration date on their EAD.
Note - The date on the I-94 does not matter in this case. You should track the date on the EAD card.
Reverification - Whenever the employee renews their EAD, you should complete an I-9 reverification.
Can I virtually inspect documents for remote employees?
The Department of Homeland Security (DHS) made special allowances during the pandemic to allow employers to complete I-9 verification remotely (via video calls etc.) by waiving the in person requirement to check employee documents. This allowance was initially set to expire on April 30 but has been extended through October 31, 2022. After this date the employer will have to revert back to completing I-9 forms and checking documents physically. But wait...... there's more.....
Isn't there a new rule that allows me to inspect the documents virtually?
Yes there is. The Department of Homeland Security proposed a new rule, on August 18, 2022 where employers could have the option to virtually examine employee's documents. BUT...... this is just a proposed rule and has not gone into effect. Here is the timeline that will be followed -
Rule proposed - August 18, 2022
6o days comment period - October 17, 2022
DHS secretary authorizes the rule - can't say by when
There are other caveats like this rule may only be limited to specific pandemic like situations or may just open for a small set of employers. So, we recommend that you prepare to physically check the documents for remote employees. Here's how -
How to check documents for remote employees?
A lot of companies these days are hiring people remotely. So, how do you meet the requirement of "physically" checking the documents?
For remote employees, you could work with designated local individuals or organizations that the company or you trust. These individuals or entities could be the company's agent to complete the I-9 verification physically. Think notaries, lawyers or HR managers
Note - you want the individual or organization who physically examines the documents to complete and sign the Section 2 of Form I-9.
When to purge records?
You can only purge the I-9 records of terminated employees -
If the employee was with the company for more than three years -
One year after their termination date
If the employee was with the company for less than three years -
Three years after their hiring date
Have edge cases that you need to discuss?
Send us an email at firstname.lastname@example.org and we’ll be happy to answer your questions.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.