I-9: Does an Employer Have 3 or 4 Days to Complete?

There has been some recent public reports and discussions regarding “how to count days” in determining employer requirements with respect to completing the Form I-9 Employment Eligibility Verification. In reviewing the I-9 process requirements, let us consider using the example of an employee hired on a Monday.

• By regulation, the employer must have the employee complete Section 1 “at the time of hire.” As such, it is clear that Section 1 should be completed on the first day of employment.
• Employers (or any employer-authorized representative) must then complete Section 2 “within three business days of hire.” This is the time period during which the employer must physically examine the documentation presented by the employee and complete and sign Section 2. Historically, the biggest confusion surrounding this three-day time frame was determining what is a “business” day?  Employers that operate Monday through Friday are not required to count weekends, but employers that regularly operate on weekends and holidays must include all days in counting to three. So in the original example of the employee hired on Monday, the common interpretation was that Section 2 should be completed by Wednesday.

U.S. Citizenship and Immigration Services (USCIS) recently posted guidance for users of the E-Verify system. As noted on the website, when counting to three, USCIS does not count the day of hire as day one. Thus, Thursday is noted as the “[third] business day after hire” in our Monday hire example and thus as the deadline for creating a case in E-Verify. This seems like a plausible reading of the regulatory requirement.

However, there has been no clear, absolute policy pronouncement from USCIS on this interpretation. To be certain, we are hesitant to recommend to employers that they should rely on this interpretation when completing Form I-9. For now, we would recommend that the employer count the hire date in calculating the “three business days after hire.” In fact, perhaps the best practice would be to ask the employee to bring the I-9 documents to work on the first day of work and complete Sections 1 and 2 on the first day of employment. Nevertheless, employers can clearly wait until Wednesday to complete Section 2 and, if things go awry as they sometimes do, may still be in full compliance if Section 2 is completed by Thursday. We will provide a future update should USCIS offer clarification.