Can employers accept a receipt for a replacement document for I-9 purposes?

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Question:

My new employee is unable to finish the I-9 because her wallet was stolen. She has applied to get a new driver’s license, Social Security card, and passport. She brought me a document from the Department of State showing that she applied to get a new passport. Do I have to terminate her employment and rehire her once she gets the documents, or can she work while she waits for the documents?

Answer:

Your new employee can work. For I-9 purposes, you can accept a receipt for an application to replace a lost, stolen, or damaged document. The receipt only works for 90 days, though, after which your employee must present an original document or documents.

The important rules to remember are:

  • the document must have been lost, stolen, or damaged (a receipt for an application to renew an expired document will generally not suffice*)
  • the receipt must be an actual receipt, not just a printout confirming the individual’s information (the Social Security Administration sometimes issues SSN printouts that employees will try to present as receipts)
  • the lost, stolen, or damaged document must be an acceptable I-9 document, and
  • you must calendar to follow up with the employee within 90 days to review the original document(s).

Attorneys disagree about whether the employee must present the actual replacement document at the end of the 90-day period (or may instead present a different I-9 document). In the situation described above, if the employee did not receive the replacement passport before the end of the 90-day period, she may wish to present her new driver’s license and Social Security card to the employer. According to U.S. Citizenship and Immigration Services (USCIS) guidance, the employee should not be allowed to do so. However, many attorneys disagree, citing concerns about discrimination claims that may arise. As such, you should speak with an attorney if you face such a situation so that you are certain to understand the risks of accepting or not accepting alternative documentation.

USCIS also indicates that the employee may not present another receipt at the end of the 90-day period; the employee is required, at that point, to present an original document. Again, attorneys may disagree about whether employers face more risk by following this guidance or by accepting a second receipt. Speak with an attorney if you face this type of situation and are unclear about how to proceed.

*Note that in certain situations, foreign nationals may continue to work for an employer based on an application to extend status. You should confirm that the document is acceptable and confer with your immigration counsel regarding proper I-9 completion prior to accepting a receipt for such a petition.

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