Q: An employee who has worked for us for many years informed me that she changed her name to her unmarried surname last year when she got divorced. Do I need to change the Immigration Form I-9 that has her married last name on it? Also, when checking her Form I-9, I found several other employees' I-9s that are incomplete because the company's former HR manager neglected to sign Section 2, the employer certification statement. Do I need to update these I-9s? If so, how?

Call Mark Soycher at the HR Hotline: 860.244.1900.
Call Mark Soycher at the HR Hotline: 860.244.1900.

A: You are not required to update Form I-9 when your employee has a legal change of name. However, it is recommended that you maintain correct information on your I-9s and note any name changes in Section 3, generally used for "reverification and rehires."

Form I-9 regulations do not require that employees present documentation to show that they have changed their name, but you should take steps to be reasonably assured of your employee's identity and the accuracy of your employee's legal name change so that your actions will be properly documented and supported if the government asks to inspect your I-9s.

The issue of not having the employer certification part of Form I-9 (Section 2) properly completed requires careful attention.

You cannot simply sign Section 2 as the current HR manager or on behalf of the former HR manager, since it is an attestation of having reviewed the employee identity and work authorization documents and determined that they "reasonably appear genuine." Unless you examine the documents yourself, you cannot make that assertion based on the former HR manager's document review.

Immigration law requires that the person signing Section 2 attesting to the authenticity of the documents must have examined the original documents. You may make copies for your files, but copies are not acceptable when initially completing the I-9.

You should ask the affected employee(s) to complete a new Form I-9 Section 1 and provide you with proper documents for identification and work authorization: either the same or other acceptable documents.

After you review them, and assuming you conclude they "reasonably appear genuine," complete and sign Section 2 on the new I-9 and attach the new Form I-9 to the original incomplete Form I-9 with a note indicating that upon discovery of the incomplete old form, you updated your records with a corrected form.

That explanation and documentation should be acceptable in the event your records are audited.

Filed Under: Employment Verification, HR Hotline
  • Jessica Taylor

    Should you make copies of documents and keep with the I9?

    • CBIANews

      When completing Immigration Form I-9’s, employers participating in E-Verify are required to retain a photocopy of a U.S. passport and passport card, Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766) if presented by an applicant. These documents are used as part of an electronic Photo Matching process used in E-Verify.

      If not participating in E-Verify, and with respect to all other documents presented for completing Form I-9, the federal regulations allow employers to choose whether or not to keep copies of documentation submitted upon employment. If an employer chooses to retain copies of an employee’s documents, that should be done for all employees, regardless of national origin or citizenship status, to avoid a possible accusation of violating anti-discrimination laws. It should be noted that photocopying documents is not a substitute for fully completing Section 2 of Form I-9, which requires physically examining and listing the documents on Form I-9 and attesting that they appear to be genuine and to relate to the employee or applicant presenting them.

      There are pros and cons to copying and retaining supporting documents. The regulations require retaining completed Form I-9’s (and documents if copied) for three years from the date of hire or one year after termination of employment, whichever is later, and hold employers accountable for judging the authenticity of documents, albeit not to a document expert standard, but instead a less rigid “reasonableness” standard. On the pro side, where an audit for I-9 compliance occurs many years after the Form I-9 was completed, having copies of the supporting documents can aid in evaluating the authenticity of the documents and overcome any suggestion of lax review standards, especially where the manager is no longer with the company. On the con side, retaining copies of supporting documents requires implementing an effective records security program. And if the recordkeeping system is electronic, even more needs to be done, including: (1) Ensuring that only authorized personnel have access to electronic records; (2) Providing for backup and recovery of records to protect against information loss; (3) Ensuring that employees are trained to minimize the risk of unauthorized or accidental alteration or erasure of electronic records; and (4) Ensuring that whenever an individual creates, completes, updates, modifies, alters, or corrects an electronic record, the system creates a secure and permanent record that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken. To emphasize the point, consider that in the present climate of heightened cybersecurity concerns, the personal data on the various documents used for Form I-9’s would constitute a treasure trove for an identity thief.

      Lastly, deciding whether or not to prepare and retain copies of supporting documents is not a one-way street. An employer may choose to begin or end the practice at any time, as long as whatever approach selected or shifted to is used for all employees. And if after retaining documentation for some time, the decision is made to abandon the practice, do not shred previously retained copies of documents. Federal regulations provide that once copies of documents are made, they must be retained with the Forms I-9 or with the employee’s records.