USCIS Form I-9 Questions and Answers

The Follow questions and their answers have been supplied to Mitratech's Tracker I-9 team by USCIS Form I-9 Compliance.  The Tracker I-9 system and it's validation rules are designed with this and other guidance from USCIS in mind.

1. Q: May a notary public or any authorized representative attach an attestation to Form I-9 instead of providing a signature in the signature block of Section 2?

   • A: No. Section 2 is a review of the documents the employee presents and must be signed. If Section 2 is not signed by the individual who reviewed the documents, Form I-9 is not complete.

2. Q: Can an H-1B employee present a driver's license and Form I-94 card only (no passport) for reverification?

   • A: An H-1B employee who is verifying continued H-1B employment authorization may choose to present his or her Form I-94 as List C document.

3. Q: We know employees may present a receipt for the replacement of any List A List B or List C document. However, the I-9 does not have an option on the drop down menu for a receipt for a U.S. Passport but it seems to have the option for every other possible document (receipt). USCIS Website states: Your employee may present a receipt for the application for the replacement of ANY List A List B or List C document. The US Passport has a receipt as it is a list A document is this an oversight or an error on the form I-9?

   • A: Though the Department of State may issue a paid confirmation receipt for a U.S. Passport they do not issue the type of receipt that is acceptable for Form I-9 purposes.

4. Q: Is a confirmation receipt an acceptable receipt for a lost Employment Authorization Document (EAD) (Form I-766)?

   • A: The confirmation receipt printed from the USCIS website states that it is not a receipt notice and cannot be used as evidence of a pending application. It is not an acceptable receipt for a lost EAD. Form I-797C, Notice of Action, which is mailed to the employee by USCIS is an acceptable receipt to acknowledge that an application for a replacement EAD has been submitted.

5. Q: Can an Employment Authorization Document (EAD) (Form I-766) be used on the Form I-9 before the Valid From date is reached?

   • A: No, per USCIS Form I-9 Support, documents that contain Valid From dates cannot be used before that date is reached, and this includes Form I-766 Employment Authorization Documents (EAD). The Form I-9 states a document has to be an acceptable document that shows identity and employment authorization, if the card is not yet valid it would not be an acceptable document.

6. Q: Why won't the Tracker I-9 System will not allow me to record an expiration date that is more than 5 years in the future for an Employment Authorization Document (EAD) (Form I-766)?

   • A: Per USCIS Form I-9 Support, Form I-766 Employment Authorization Documents (EAD) are issued for a maximum of 5 years.  If you have an EAD with an expiration date that is more than 5 years in the future, please check the Valid From date printed on the card as it is likely in the future as well, and cannot be used until that Valid From date is reached (see question above).

7. Q: Can an F-1 student eligible for on-campus employment or curricular practical training present a List B document, such as a driver's license or school ID, along with a Form I-94 and Form I-20 as a List C document when completing Form I-9?

   • A: Yes. Form I-94, in combination with Form I-20 is an acceptable List C #7 document. The documents individually do not qualify.

8. Q: My company currently keeps copies of documentation presented by my employees for Form I-9. Can we stop doing this?

   • A: Form I-9 regulations allow employers to choose whether to keep copies of documents employees submit to complete their Form I-9. Therefore, you may choose to begin or end the practice of keeping copies of documents at any time, as long as you do so for all employees, regardless of national origin or citizenship status, or you may be in violation of anti-discrimination laws.
     
     Do not shred previously retained copies of documents. DHS regulations state that once you make copies of documents, you must retain them with the Forms I-9 or store them with the employee's records.
     
     Additionally, if you participate in E-Verify, you must retain a copy of any document any employee presents that triggers photo matching. If an employee presents a U.S. passport card, Permanent Resident Card (Form I-551), or the Employment Authorization Document (Form I-766), you must copy the front and back of these cards. If the employee presents a U.S. passport, you must copy the front page and the back barcode page.

9. Q: When does the 90-day validity period begin for an employee presenting a receipt for the application for the replacement of any lost, stolen, or damaged List A, List B, or List C document?

   • A: The validity period begins on the employee’s first full day of employment and, in the case of reverification, it begins from the date reverification is required (in other words, when a document requiring reverification expires or the date employment authorization expires).
     
     For example, if an employee begins work on Monday, the employer should count Tuesday as Day 1 and count 90 days to determine the validity period of the receipt.
     
     If the same employee begins work on Monday but does not provide the receipt to complete Section 2 until Thursday, the employer should still count Tuesday as Day 1 and count 90 days to determine the validity period of the receipt.

10. Q: My new employee presented two documents to complete Form I-9, each containing a different last name. One document matches the name entered in Section 1. Can I accept the document with the different name?

    • A: You may accept a document with a different name than the name entered in Section 1 provided that you resolve the question of whether the document reasonably relates to the employee. You also may wish to attach a brief memo to Form I-9 stating the reason for the name discrepancy, along with any supporting documentation the employee provides. An employee may provide documentation to support his or her name change, but is not required to do so. If, however, you determine that the document with a different name does not reasonably appear to be genuine and to relate to her, you may ask her to provide other documents from the Lists of Acceptable Documents on Form I-9.

11. Q: What is my responsibility concerning the authenticity of document(s) presented to me?

    • A: You must examine the document(s), and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If the document(s) do not reasonably appear on their face to be genuine or to relate to the person presenting them, you must not accept them. You may ask if the employee has other documentation that would satisfy Form I-9.

12. Q: Is an expired Permanent Resident Card with a valid sticker on the back extending the expiration date considered a valid List A document? Does this card need to be reverified?

    • A: A Permanent Resident Card with a USCIS-issued sticker extending its validity is a List A document and acceptable for Form I-9. Employers are not required to reverify the employment eligibility of a lawful permanent resident and should not reverify the employment authorization of this employee.

13. Q: Is an F-1 student's Form I-20 information required for Form I-9 when he/she is participating in on-campus employment?

    • A: To complete Form I-9 for on-campus employment, the F-1 student employee is only required to present an unexpired foreign passport and an I-94 indicating F-1 nonimmigrant status. Employers are not required to record information from the student's Form I-20 in Section 2. On-campus employment is authorized until the completion of the student's course of study. The F-1 nonimmigrant admission notation on Form I-94/I-94A usually states "D/S" which means duration of status. The F-1 student's Form I-20 bears the latest date by which studies are to be completed. This date can be used as the date by which the employers should reverify the student's employment authorization and should be entered by the employee in Section 1.

14. Q: Is a state-issued temporary driver's license an acceptable List B document?

    • A: A state-issued temporary driver's license is an acceptable Form I-9 List B document if it contains a photograph or identifying information such as name, date of birth, gender, height, eye color, and address. Any conditions on the temporary driver's license, such as that the expired license must accompany the temporary driver's license for it to be valid, must be followed.

15. Q: What documents can a refugee present to complete Form I-9, Employment Eligibility Verification?

    • A: A refugee may choose to present any applicable documents from the Lists of Acceptable Documents. DHS provides refugees electronic or paper Forms I-94, Arrival-Departure Record, as evidence of their status and employment authorization. A refugee's electronic Form I-94 contains the admission code of "RE" and a paper Form I-94 has a refugee admission stamp. A refugee may use his or her unexpired Form I-94 as a receipt for a document establishing both employment authorization and identity for 90 days. After issuance of Form I-94, USCIS will process an Employment Authorization Document (Form I-766) for a refugee. If an employee presented a Form I-94 with an unexpired refugee admission stamp as a receipt, before the end of 90 days, the employee must present either an Employment Authorization Document or a combination of a List B document and an unrestricted Social Security card.
      
      A refugee's Department of State-issued Transportation Boarding Letter is an acceptable List B #2 identity document if it contains a photograph or identifying information (name, date of birth, gender, height, eye color and address) and appears to be genuine and to relate to the person presenting it.

16. Q: Is a Form I-94 stamped with "parole" an acceptable List C #7 document?

    • A: No. A Form I-94, Arrival/Departure Record, stamped with "parole" is not evidence of employment authorization and, therefore, is not an acceptable List C document. Before parolees can work, they must apply for employment authorization. If we approve their application, we will issue an Employment Authorization Document, which is an acceptable List A document.
      
      Note: A foreign entrepreneur paroled under the International Entrepreneur Rule Program is authorized employment incident to the grant of parole. The paroled entrepreneur’s foreign passport and Form I-94, Arrival/Departure Record, bearing the same name as the passport and unexpired endorsement of the entrepreneur’s parole (PE-1) are acceptable as a List A document.

17. Q: What List C Document type option does "List C #7" refer to?

    • A: List C #7 refers to an Employment authorization document issued by the Department of Homeland Security (DHS) (List C #7 document), which is identified as the "DHS Employment Authorization Document" option within the Tracker I-9 System.

18. Q: Is an unsigned Social Security card valid?

    • A: Yes. A signature on the card is not required for the card to be valid. You may accept an unsigned Social Security card as long as the card reasonably appears to be genuine and to relate to the person presenting it

19. Q: Is a hire required to enter their Social Security Number (SSN) in Section 1 of the Form I-9?

    • This will depend on whether the I-9 record will be subject to E-Verify.  Per USCIS, "Employees may voluntarily provide their Social Security number or leave this field blank. However, if you are enrolled in E-Verify, your employees must provide their Social Security number."  Due to these rules, the Tracker I-9 application will only mark the Social Security Number (SSN) field as required for Form i-9 records that will be subject to E-Verify

    • USCIS Resources:

      • USCIS I-9 Central: Completing Section 1, Employee Information and Attestation

      • M-274 Hanbook for Employees: 3.0 Completing Section 1: Employee Information and Attestation

20. Q: If an employer fails to make a copy of a List A document (subject to photo match) and they identify this error during a self-audit, what should the employer do if the document is no longer available to copy?

    • A: The employer should attach a note to the employee’s Form I-9 explaining the discrepancy. Ensure the note is signed and dated.

21. Q: What should I do if I discover that a Form I-9 for my employee was not completed or is missing?

    • A: If a Form I-9 was never completed or is missing, the current version of the Form I-9 should be completed as soon as possible. Employers should not backdate the form, but should clearly state the actual date employment began in the certification portion of Section 2. Employers should attach a signed and dated explanation of the corrective action taken.