USCIS Updates Form I-9 Lost Document Policy

​Workers may now present alternate documents to complete the Form I-9 employment eligibility verification process when initially providing a receipt for a lost or damaged document, according to a new policy from U.S. Citizenship and Immigration Services (USCIS).

If an employee presents a receipt for a lost, stolen or damaged identity or employment authorization document to complete Form I-9 verification, he or she was previously required to produce the replacement document for which the receipt was issued within 90 days. However, this was not always possible due to document delays, changes in immigration status, or other factors.

"For many years, HR and hiring managers have struggled with a Form I-9 scenario that arises from time to time—when an employee presents a receipt for a lost, stolen or damaged document, can the employer, within 90 days, accept an alternate document or combination of documents?" said John Fay, an immigration attorney and president of the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration case management services.

The answer is yes—another acceptable document can now be provided instead, within the 90-day timeframe, and the employer should complete a new Section 2 on the I-9 form and append it to the previously completed form. In addition, the employer should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment, USCIS said.

"Accepting alternate documents seems logical from a business and practical perspective, particularly if the documents are valid and unexpired," Fay said. "After many years of listening to employers and their counsel complain about the rigidity of the rule, the USCIS has taken the bold move to formally modify their policies and allow employers to accept alternate documentation."

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 in cases where the previously approved authorization has expired.

Fay provided a couple of real-life examples of when the rule could create a dilemma:

• Employees present a receipt for a lost EAD [employment authorization document], and in the interim, adjust their status to lawful permanent resident. In this scenario, these employees could not present a new EAD because their green card is evidence of work authorization.
• An employee presents a receipt for a damaged green card, and in the interim, naturalizes to become a U.S. citizen.

"COVID-19 delays, government office closures and irregular work schedules have also exacerbated this problem, with many employees still waiting to receive a replacement document on an application that was submitted pre-pandemic," Fay said.

He pointed out that the new policy would also apply to receipts for lost, stolen or damaged documents provided by an employee during the Form I-9 reverification process for employees with expiring work authorization.

"If an employee later provides an alternate document for reverification after initially providing a receipt for a lost, stolen or damaged document, the employer should complete a new Section 3 to record the substitute document," he said.

[Want to learn more about HR compliance? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

Next Steps for Employers

Fay said that employers should take steps to update their Form I-9 and E-Verify policies to carefully document this policy change. "I would recommend coming up with a standard boilerplate note that can be inserted in the Additional Information box as required under the revised guidelines," he said. "Employers should also update their Form I-9 training materials to make sure this process is accounted for when instructing new HR representatives or other personnel who will handle Form I-9 updates. Completing a new Section 2 is generally considered a nonstandard practice, so employers may want to include some example templates as well."

He added that employers using electronic I-9 and E-Verify programs should figure out how they will manage receipt updates when alternate documentation is presented.