I-9 Update: USCIS Broadens Its Policy on Use of Receipts in the Employment Eligibility Verification Process
July 8, 2021
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At a Glance
USCIS recently clarified its policy that, if an employee presents a receipt for a lost, stolen or damaged document to complete Form I-9 verification, the employee must return in 90 days to present either the replacement document for which the receipt was issued, or another acceptable document or documents, to complete Section 2 of the Form I-9. If the employee presents a different document or documents than the one for which the receipt was issued, the employer should complete a new Section 2 of the Form I-9 and append it to the previously completed form.
A closer look
Employers are required by law to verify the identity and work authorization of newly hired employees and attest to the verification in Section 2 of the Form I-9. Employers also must reverify renewed work authorization of current employees in Section 3 of the Form I-9 in cases where the previously approved authorization has expired. Form I-9 verification requires the employee to present original documents. However, under the longstanding “receipt rule,” an employee may present a receipt for a lost, stolen, or damaged document and return with the original replacement document within 90 days. Applicable regulation and agency guidance did not address the scenario where an employee presents acceptable document(s) for Form I-9 verification that are different from the document for which the receipt was issued.
In guidance announced on July 7, 2021, USCIS clarifies that the employee may present, within 90 days of the initial verification with the receipt, the document for which the receipt was issued or another acceptable I-9 document or documents. Also according to the new guidance, if a new employee presents a different document or documents than the one for which the receipt was issued, then the employer should complete a new Section 2 of the Form I-9 and append it to the previously completed form. The new policy should also apply to receipts offered for Section 3 during the reverification process, though USCIS’s new guidance does not directly address that section.
The new guidance is being put in place in recognition of the long delays that many employees face in obtaining replacements for lost, stolen, or damaged identity and employment authorization documents. It also introduces some welcome flexibility concerning the receipt rule, but employers must ensure that those responsible for I-9 compliance are aware of this new guidance.
If you have questions about Form I-9 procedures, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group. This alert is for informational purposes only.
