Ask Our Experts: Form I-9 and E-Verify

Author: Taylor Lewellyn, Legal Editor

The second Trump administration continues to focus on Form I-9 requirements and employment eligibility verification as it escalates audits and worksite immigration enforcement. Below are just a few of the questions related to the I-9 and E-Verify that the Brightmine Ask Our Experts service has received from HR professionals navigating this compliance minefield.

New Form I-9 for Transferred Employees

Q: When an employee is transferring to a new business unit, with a different employer identification number (EIN), do they need to complete a new Form I-9?

A: According to guidance provided by US Citizenship and Immigration Services (USCIS), employers must complete a Form I-9 when a "hire" takes place.

However, a hire is not considered to have taken place in certain situations when the employee is continuing in their employment and has a reasonable expectation of employment at all times. If the employee's situation satisfies these criteria, a new Form I-9 is not required.

Some of the situations in which an employee may be continuing in their employment include the following:

• The employee is promoted, demoted or gets a pay raise.
• The employee transfers from one distinct unit of an employer to another distinct unit of the same employer, in which case the employer may transfer the individual's Form I-9 to the receiving unit.
• The employee continues their employment with a related, successor or reorganized employer, provided that the employer obtains and maintains I-9 records from the previous employer. This includes the same employer at another location or an employer that continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger or sale of stock or assets.

Consequently, a new Form I-9 is likely not needed when an employee transfers to a new business unit with a different EIN.

Authorized Representatives and E-Verify

Q: If we use an authorized representative for the purposes of completing Section 2 or Supplement B, Reverification and Rehire, of the Form I-9, do we also need to participate in E-Verify? Or is E-Verify only applicable if we are examining documents virtually?

A: An employer is not required to be enrolled in or to use E-Verify in order to use an authorized representative (also referred to as a designated representative) to complete the Form I-9 process as long as the employer or authorized representative examines the original identity and work authorization documents in the physical presence of the employee presenting them. 

However, if the employer wishes to use the optional alternative remote documentation verification procedure, either on its own or by an authorized representative acting on its behalf, it must be a participant in good standing in E-Verify. Additionally, use of E-Verify is required when mandated by state law or federal contracts.

Copying Documents for Remote Verification

Q: When using the optional remote document verification procedure as part of the Form I-9 process, are we required to obtain front and back copies of the documents presented by employees? If so, what is considered the "back" side of a passport?

A: A qualified employer electing to use the alternative procedure is required to retain a clear and legible copy of ALL identity and employment authorization documentation presented by the employee and retain the copies with the Form I-9. The copy must include the front and back if the documentation is two-sided.

Based on earlier guidance provided on the E-Verify website, if an employee presents a US passport or a passport card, an employer must copy the Passport ID page and the Passport Barcode page.

Note that an employer not electing to use the alternative procedure is only required to retain copies of the documentation presented if it is enrolled in E-Verify. In that case, an E-Verify employer must retain a copy of the following documents with the Form I-9 if submitted by the employee:

• Employment Authorization Document (Form I-766);
• Permanent Residence Card, i.e., green card; or
• US passport or passport card.

Again, when an employee presents one of these documents, employers must copy the front and back of the document (or in the case of a U.S. passport or passport card, copy the Passport ID page and the Passport Barcode page) and retain the copies with Form I-9.

Additionally, if an employer uses neither the alternative procedure nor E-Verify, it may (but is not required to) copy an employee's documents. If it is the policy of the employer to copy the documents, the policy should be applied uniformly and consistently with all employees. Only copying documents of employees of certain nationalities or citizenship may be an unfair immigration related employment practice.

Ask Our Experts Is Here to Help

Employers will continue to have questions surrounding Form I-9, E-Verify, employment authorization and worker visas as policies continue to evolve under the Trump administration. Luckily,  Ask Our Experts is here to help.