The Three Day Rule and Completing Form I-9

Timely completion of the I-9 form and submission to E-Verify is more important than you might think. It pays to understand all E-Verify deadlines, but the E-Verify Three Day Rule is especially important. Failure to complete the form and verify according to law and the MoU has resulted in substantial fines to employers.

The Three Day Rule & Completing Form I-9

As an E-Verify employer, the following guidelines for completing the I-9 form and verifying the new hire in E-Verify apply:

• The earliest that the new hire can be asked to complete Section 1 of the I-9  form is after an offer of employment is extended and accepted. You may not use the I-9 form as part of the applicant screening process or background check;
• The latest that the new hire must complete Section 1 of the form is the end of the first day of work for pay;
• The latest that you may complete Section 2 of the form (identification documentation verification) is the end of the third day after the first day of employment. If the employee will work for fewer than three days, you must verify identification documents on the first day of work for pay;
• You should encourage the new hire to present identification documents as soon after completing Section 1 of the form as possible, but must allow the new hire up to three days after beginning work for pay (for those working three days or more) to present identification documents from the list of acceptable documents that are found in the instructions for the I-9 form. If the new hire does not present acceptable identification documents by the end of three business days after the first day of work for pay, you may terminate the employee for failing to complete the I-9 form.

Whatever your policy is for completing the I-9 form, you should implement it uniformly.

Example: You decide to hire an applicant on a Monday, and the applicant accepts. The new hire will begin work on the following Monday, and will be a long-term employee. The new hire may complete the I-9 form and present identification documents any time between the first Monday (the date that the position was accepted) and the end of the next Monday, the first day of work for pay. You must examine identification documents and complete Section 2 by end of business on Thursday, the third day after the first day of work for pay.

The E-Verify Verification

You may submit a new hire for verification any time between:

• The earliest– after the applicant has accepted the position, and you and he have completed both sections of Form I-9. The verification can be completed before the employee begins work for pay;
• The latest — three days after the new hire’s first day of  work for pay, unless the employee will work for fewer than three days; for them, you must verify no later than the first day of work for pay.

Important: Although you can verify a new hire in E-Verify prior to their first day of work for pay, you should never make a hire’s employment contingent on “passing E-Verify.” Using E-Verify for pre-employment screening of job applicants is prohibited by the Memorandum of Understanding.

Further, for the purposes of E-Verify an applicant is considered “hired” if the individual has been offered and has accepted the position, and Form I-9 has been completed. As the MoU requires employers to verify all new hires, you should submit an individual for verification if the form has been completed, even if they never work for pay.

Guidance for Our E-Verify Clients

A new hire verification is considered late if we initiated it later than the third business day after the employee first started work for pay. For that reason, we prefer that you submit the I-9 form to us no later than the second day of work for pay.

When a verification is submitted after the deadline, we are required to enter a reason for the delay. The E-Verify Memorandum of Understanding (MOU) specifies a limited number of acceptable reasons for submitting for verification late, which are:

• E-Verify was temporarily unavailable because of a technical outage and after subtracting the time period of the outage, the submission wouldn’t have been considered late.
• The employee applied for, but did not yet have a Social Security number, and the submission was made as soon as the employee was issued the Social Security number.
• An internal audit revealed that new hire was not run.
• Federal Contractor with FAR E-Verify Clause verifying an existing employee.

If the late submission does not fit one of the above reasons or you have not informed us of the cause for the delay, we will enter “Reason for Delay Unknown.” An excessive number of “reason unknown” responses could trigger a DHS I-9 audit.

The 3 Day Rule and Remote Hires

The Form I-9 and E-Verify deadlines apply to all hires, whether local or remote. While the USCIS might forgive a missed deadline when there has been a good faith effort to comply, you should make every effort to complete the form in a timely manner. For a remote employee, this may mean making the decision to hire much earlier than you might for a local employee, or hiring a remote Form I-9 service to get the job done.

You may have more time to complete Form I-9 in a remote hire situation than you think, but less time than you realize once it is complete. The “three-day rule” and other deadlines apply to when the form is completed; not when it comes into your possession.

Conclusion

The Form I-9 and E-Verify deadlines are important; especially the E-Verify 3 Day Rule. While the U.S. Citizenship and Immigration Service’s primary goal is to educate employers so that they do follow the rules, they will take action against employers that consistently violate the MoU.

For more information on Form I-9, consult the M-274, Handbook for Employers.