3 Days or 4 Days to Complete the I-9 and E-Verify?

As noted in the GT Alert on the E-Verify redesign, USCIS quietly mentioned in the E-Verify training webinars and tutorials that employers have three days after the employee's date of hire to open a case in E-Verify. At first glance, this instruction seemed to indicate that the E-Verify program had acknowledged the plight of certain employers using the centralized E-Verify processing location who often found themselves on a tight timeline to complete the Form I-9 and initiate an E-Verify query within 3 days. It appeared that an additional day was being afforded to initiate an E-Verify query. After consulting the legislative history, including a review of the Illegal Reform and Responsibility Act of 1996 and its references to the basic pilot program, the basis for additional day provision could possibly be argued as a legal interpretation. However, the issue of allowing an additional day for Section 2 of the I-9 to be completed required immediately clarification and we contacted USCIS for guidance. USCIS did acknowledge their intention to provide a four-day window (Monday hire date-Thursday deadline) to complete both E-Verify and the I-9. However, it was quickly apparent that such a statement and all of its implications had not been thoroughly vetted with the Immigration and Customs Enforcement (ICE), the agency that is primarily responsible for auditing Forms I-9. We felt such discussions were critical to ensure consistency in interpretations and brought this posting to the attention of officials at ICE seeking clarification on behalf of our clients. Initially there was no answer available.

On June 30, USCIS issued a public clarification, presumably after clearing it with the USCIS Office of Chief Counsel, stating that: "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." Unfortunately the guidance is bit ambiguous, as the USCIS went on to state on the What’s the Hire Date for E-Verify Page:

"While there is much overlap between Form I-9, Employment Eligibility Verification, and E-Verify requirements, this page addresses the three-day rule as it applies to E-Verify. For more information on Form I-9, consult the M-274, Handbook for Employers."

After ongoing discussions seeking clarity and consistency with both ICE and USCIS, an update was provided to GT. The "Thursday Rule" indeed applies to both E-Verify and the I-9 and will be respected by ICE. The USCIS postings will also be shared with the local SAC ICE Offices and Forensic Auditors. For further information on this subject please contact Dawn Lurie.