USCIS Clarifies Three-Day Rule and Hire Dates Used for Form I-9 and E-Verify

By Thomas Ahearn, ESR News Staff Writer

Since understanding the “Three-Day Rule” and determining the hire dates for completing Form I-9 and E-Verify are not always clear and simple for employers, the U.S. Citizenship and Immigration Services (USCIS) has added an important update to their E-Verify website that attempts to clarify both the definition of a “hire date” and the timing requirements for when employers are expected to complete Section 2 of the Employment Eligibility Form I-9 and when to E-Verify employees.

While there is much overlap between Form I-9, Employment Eligibility Verification, and E-Verify requirements, USCIS addressed the “Three-Day Rule” as it applies to E-Verify after receiving lots of questions about what to select for the E-Verify hire date with the addition of the “Three-Day Rule” screen in the redesigned E-Verify website. According to the “Three-Day Rule” as explained on the USCIS website, an E-Verify case is considered late if an employer creates it later than the third business day after the employee first started work for pay.

According to the USCIS E-Verify website, to comply with the law for completing the Form I-9 and E-Verify:

  • The earliest employers may complete Form I-9 is after the employee has accepted an offer of employment.
  • The latest employers may complete Form I-9 is the third business day after the employee started work for pay.
  • The earliest employers may create a case in E-Verify is after the employee has accepted an offer of employment and the Form I-9 is complete.
  • The latest employers may create a case in E-Verify is the third business day after the employee started work for pay and the Form I-9 is complete.

Under these new guidelines, the USCIS has effectively extended the Section 2 and E-Verify deadline by a full business day, from three days to four since the first paid day of work is not included in the “Three-Day Rule.” For further clarification, the USCIS E-Verify website even gives the following example:

If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer).  The first day the employee starts work for pay is not included in the three business day calculation.

In addition, the USCIS realizes the term “hire date” in E-Verify is confusing because its meaning can vary depending on when the employee starts work for pay and the date the case is created in E-Verify. In determining the E-Verify “Hire Date,” the USCIS suggests the following:

  • If an employee creates the case in E-Verify before the employee starts work for pay, then the E-Verify hire date is the date the employee created the case in E-Verify.
  • If an employee creates the case in E-Verify on or after the employee starts work for pay, then the E-Verify hire date is the date the employee started work for pay.

USCIS considers an E-Verify case late if an employer creates it later than the third business day after the employee first started work for pay. When asked why their E-Verify case is late, employers can either select one of the following reasons provided or enter their own:

  • Awaiting Social Security Number
  • Technical Problems
  • Audit Revealed that New Hire Was Not Run
  • Federal Contractor with FAR E-Verify Clause verifying an existing employee (This reason is displayed only to an organization enrolled in E-Verify as a Federal Contractor with FAR E-Verify Clause.)
  • Other (If this reason is selected, employer must enter a reason in 200 or fewer characters and should not include any personally identifiable or sensitive information such as Social Security numbers).

Employment Screening Resources (ESR) — a national background screening provider and authorized E-Verify Designated Agent — can help employers virtually eliminate I-9 form errors, improve the accuracy of their reporting, protect jobs for authorized workers, and help maintain a legal workforce. For more information about the E-Verify Electronic Employment Eligibility Verification system, visit http://www.esrcheck.com/formi9.php.

Sources:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c00b59cca6149210VgnVCM100000082ca60aRCRD&vgnextchannel=d4abfb41c8596210VgnVCM100000b92ca60aRCRD