Executive Summary
- The Deadline: Section 2 must be done by the third business day after the start date (The "Thursday Rule").
- The Fix: If you are late, do not backdate. Attach a memo explaining the delay.
- The Strategy: International travel can shorten a work visa expiration date. Implement a policy to check I-94s after every trip.
- The Trap: Never re-verify an expired Permanent Resident Card (Green Card).
1. Timeline for I-9 Checks
The biggest source of stress is the "3-day rule." Here is how to calculate it properly so you never miss a beat.
- Section 1 (Employee): Must be completed by the end of the first day of work for pay.
- Section 2 (Employer): Must be completed within 3 business days of the start date.
The "Thursday Rule" Shortcut: If an employee starts on a Monday, Section 2 is due by the end of the day on Thursday.
- Day 1: Monday (Employee starts)
- Day 2: Tuesday
- Day 3: Wednesday
- Day 4: Thursday (The deadline).
Pro Tip: Do not wait for Day 1. You can ask employees to complete Section 1 and present documents as soon as they have accepted the job offer. This builds in a buffer before they even walk in the door.
2. Handling Late I-9s
If you miss the Thursday deadline, do not backdate the form. Backdating is fraud and is a far worse violation than being late.
Will I get fined for being 1 day late? Technically, a fine is possible if you are audited, but it is not automatic. Fines for paperwork violations can range from $272 to $2,782 per form. However, audits are typically targeted at companies suspected of knowingly hiring unauthorized workers.
How to fix a late I-9:
- Complete it immediately. Better late than never.
- Attach a memo. Write a short note explaining why it was late (e.g., "Administrative oversight," "Employee delayed providing docs") and attach it to the I-9.
- Be honest. If you use E-Verify, it will ask why the case is late. Select the appropriate reason or choose "Other" and type a brief explanation.
3. Initial Verification for Foreign Nationals
Verifying foreign nationals (H-1B, F-1, TN, etc.) can be intimidating because they often present documents you don't see every day.
The Golden Rule: You must allow the employee to choose which documents to present. You cannot demand "Show me your Green Card" if they offer a Driver's License and Social Security Card (List B + C).
Common List A Documents for Foreign Nationals:
- Permanent Resident Card ("Green Card"): Proves identity and work authorization.
- Foreign Passport + Form I-94: This is the standard for H-1B, TN, and O-1 visa holders. The I-94 proves their status and expiration date.
- EAD Card (Form I-766): Common for F-1 OPT students and spouses on H-4 EAD.
4. Why You Should Check I-94s After Travel
There is a common misconception that once an I-9 is completed, you don't need to review it again until it expires. This is dangerous for foreign nationals traveling internationally.
When an H-1B or L-1 employee enters the U.S., CBP issues them a new Form I-94. While this usually matches their visa petition date, CBP officers sometimes shorten the I-94 date to match the expiration of the employee's passport.
The Risk: If your employee's I-9 lists an expiration date of Oct 2026, but they travel and get a new I-94 ending in June 2026 (because their passport expires then), your I-9 is now wrong. Their legal work authorizationends in June.
The Fix: Implement a policy requiring foreign national employees to upload their new I-94 whenever they return from international travel.
- If the date matches your records: No action needed.
- If the date is shorter: You must update the I-9 (Section 3/Supplement B) with the new, earlier expiration date.
5. Fact Check: Do Not Re-Verify Green Cards
HR leaders often ask: "My employee's Green Card just expired. Do I need to see the new one?"
The Answer is NO. According to the USCIS M-274 Handbook, you should never reverify a Lawful Permanent Resident (LPR) who presented a valid Form I-551 (Green Card) at the time of hire, even if that card expires.
- Why? Their status as a Permanent Resident does not expire; only the plastic card does. Asking for a new card could be considered a discriminatory document practice.
- The Exception: If they originally presented a Foreign Passport with a temporary I-551 stamp, that is a temporary document, and you must reverify it when the stamp expires.
6. Summary Checklist for HR
- Day 0: Send I-9 instructions with the offer letter.
- Day 1: Ensure Section 1 is done.
- Day 3 (Thursday): Ensure Section 2 is done.
- Late? Complete it, date it for the current day (don't backdate), and attach a memo.
- Travel? Ask foreign nationals to check their new I-94 after every trip. If the "Admit Until" date changes, you must update the I-9.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Immigration rules and evidentiary standards are complex and subject to change. We strongly recommend consulting with qualified immigration counsel regarding your specific cases.
.svg)
