Manuals and the Form I-9 Hire Date
By: Dave Fowler
Finding Form I-9 and E-Verify manuals
on the U.S. Citizenship and Immigration Services (USCIS) used to be a little hit-and-miss.
The best way to find the current version of such manuals was to us the search feature
of the USCIS web site at www.uscis.gov. At the
APA’s GATF Immigration Subcommittee meeting held in D.C. in May, a suggestion was
made to the Verification Division responsible for E-Verify that all manuals be posted
on one page. It appears this suggestion has already been implemented and we should
all than E-Verify for this. You can now find Form
I-9 and E-Verify manuals on a single web page. That’s the good news!
The not so good news is that USCIS has
fallen short in providing specific requirements for determining the hire
date, employment date, rehire date, or whatever term you use to refer to the
date the employee began work on the Form I-9. Part of this has to do with there not being specific
requirements in the Form I-9 law for determining what this date should. As you
know, E-Verify will not accept a future date as the hire date. The issue
here is that there is a law governing the Form I-9, but E-Verify is still a pilot
program. It just doesn’t look good for a pilot program to be defining requrirements
for a law, does it? Therefore, USCIS has issued guidance on their web site re: What’s
the Hire Date. Unfortunately, the guidance misses the mark and makes no sense
for either the Form I-9 or E-Verify.
You can create an E-Verify case for
a new employee as soon as they have accepted an offer of employment and completed
Form I-9. The Form I-9 law does not prohibit the hire date in Section 2 or the rehire
date in Section 3 from being a future date. How a signer can attest to a future event
is beyond me since there is no guarantee the employee will even show up much less
actually start on the date entered on Form I-9. Anyway, even if you put a future hire
date on the Form I-9 you can still create an E-Verify case for the employee as soon
as Form I-9 is completed. This sets up an interesting situation since you must enter
the hire date into E-Verify and E-Verify does not accept a hire date that is in the
future. So, what do you do? Why you are instructed to lie to E-Verify, of couse.
If the Form I-9 contains a hire date that is in the future, you should enter today’s
date as the hire date in E-Verify. If the employee’s hire date is today or a date
prior to today, enter the hire date on the Form I-9 in E-Verify.
Gee, what’s the purpose of entering
a date in E-Verify that is not on the Form I-9? USCIS claims it has to do with the
three-day rule for E-Verify purposes. What do you think employers are really going
to do if they realize that the Monitoring & Compliance group within the USCIS
Verification Division is looking for E-Verify cases created by non-FAR (non-federal
contractors) beyond the three-day period? Right, the employer is simply going to enter
today’s date as the hire date to avoid submitting the new hire to E-Verify after the
three-day period. E-Verify won’t know that the case was created late because E-Verify
can’t verify the hire date.
So, rather than clarifying what is an
acceptable hire date and rehire date on Form I-9, USCIS has opted to create more
confusion, ask employers to enter a date into E-Verify that is not on the Form I-9,
and make it even more difficult for the Monitoring & Compliance group to identify
employers who intentionally create E-Verify cases late or use E-Verify for pre-screening,
which is prohibited.
Wouldn’t it make more sense for USCIS
to simply define the hire and rehire dates as the earlier of the employee’s first
day of work for pay or the date Section 2 (or Section 3) of the Form I-9 is signed?
This weblog is sponsored by TALX.
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