What Employers Need to Know About The New Form I-9

Interview with the Salt Lake Chamber of Commerce discussing the new version of Form I-9.

On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately, all NEW hires by U.S. employers should fill out the new version of Form I-9, which is identified in the lower, left-hand corner of the form with the label “Form I-9 03/08/13 N”.  Starting May 8, 2013, use of the new version of the form is mandatory.

[We previously reported that employers must start using the new form on May 7, 2013.  However, USCIS has now clarified that the correct date is May 8, 2013.  On March 20, 2013, the American Immigration Lawyers Association (AILA) reported the following:  The AILA Verification and Documentation Committee took note of the conflicting information contained in the March 13, 2013 Federal Register notice introducing the revised I-9, Employment Eligibility Verification Form and contacted the USCIS Verification Division to confirm the effective date.  According to USCIS, the last day that an employer can use prior versions of the form is May 7, 2013. Employers must use the new form, marked with a revision date of 3/8/13, beginning May 8, 2013. USCIS is working to post clarifying language on I-9 Central.]

U.S. employers need to know the following about the new Form I-9:

Official Instructions.  The new Form I-9 now has 9 pages:  Official Instructions (pages 1-6), the form on which the employee and employer enter data (pages 7-8), and the List of Acceptable Documents (page 9).  The official instructions have been expanded from 2 to 6 pages.  Anyone who is involved with a company’s I-9 process should carefully read these instructions before beginning to use the new form.  These instructions and the List of Acceptable Documents must be made available to the employee while he or she is completing the form.

Other Resources.  Anyone involved with a company’s I-9 process should also have access to the updated Handbook for Employers:  Guidance for Completing Form I-9 (Employment Verification Form) and USCIS’s online resource for employers called I-9 Central.  These and the official instructions are excellent resources that should be consulted often to ensure compliance.
Only for New Hires.  Do not require current employees for whom there is already a properly completed Form I-9 on file to complete the new Form I-9.  Doing so could violate the antidiscrimination laws.

Section 1.  This is found on page 7 and is completed by the employee:

• Although the employee completes this section, the employer is responsible for ensuring that it is completed properly and timely.
• It must be completed and signed by the employee no later than the first day of employment, but not before accepting a job offer.
• If the employee has 2 last names, enter both names under Last Name.
• If the employee has not used any other names, enter “N/A” under Other Names Used.
• No P.O. Box should be entered under Address and only border commuters from Canada or Mexico may enter an international address.  (We should not have border commuters in Utah, Georgia, or North Carolina.)
• The birthdate should be entered in the format MM/DD/YYYY.
• The employee is not required to provide his or her Social Security number unless the employer participates in E-Verify, in which case providing it is mandatory.
• The form now requests the employee’s e-mail address and telephone number, however, the employee is not required to provide this information.
• If the employee checks the box next to A noncitizen national of the United States, consider directing their attention to page 2 of the instructions, which identifies who may check this box.
• If the employee checks the box next to An alien authorized to work until, he or she must enter either their Alien Registration Number/USCIS Number or their Form I-94 Admission Number.  If they obtained their admission number in connection with their arrival in the United States, they must also insert their foreign passport number and country of issuance.  If they obtained their admission number some other way, they may insert “N/A” in these spaces.
• This is new and very important:  If the employee checks the box next to An alien authorized to work until and inserts an expiration date, the employer must track that expiration date and re-verify employment authorization on or before the date provided.  This is in addition to its duty to track the expiration date of any List A document (other than a U.S. passport or Permanent Resident Card).  If both Sections 1 and 2 indicate expiration dates triggering the reverification requirement, the employer should reverify by the earlier date.
• There are special instructions on page 2 about the circumstances under which the Preparer and/or Translator Certification must be completed.  I generally recommend that the employer should not fill out any portion of Section 1.  If it does, however, the employer’s representative must complete this preparer certification.
• There are special instructions on page 2 for how Section 1 should be prepared for minors and certain employees with disabilities.

Section 2.  This is found on page 8 and is completed by the employer:

• Section 2 must be completed within 3 business days of the employee’s first date of employment, unless the employee is hired to work less than 3 days, in which case this section must be completed on the first day of employment.
• On page 3 you will find a helpful 7-step process the employer should follow to complete this section.  The instructions emphasize that the examiner of the documents and the employee must be physically present during the examination of the employee’s original documents and that the person who examines the documents must be the same person who signs Section 2.
• Do not forget to insert the employee’s full name near the top of the page.  This is a new field that I suspect many employers are going to overlook.
• This section has been significantly improved to clearly identify the information from the original documents reviewed that must be recorded on the form, including Document Title, Issuing Authority, Document Number, and Expiration Date (if any).
• There is now a list of the Social Security cards that may not be accepted under List C of the List of Acceptable Documents (page 9).
• Under Certification, do not forget to enter the employee’s first day of employment.  (For temporary staffing agencies, insert the first day the employee was placed in a job pool and recruiters and recruiters for a fee may leave this space blank.)
• On pages 3-4 you will find useful and detailed instructions about photocopying the documents presented, unexpired documents, and receipts, including what receipts an employer may accept and how to properly annotate the I-9 form when an employee presents an acceptable receipt.  Review these important instructions carefully.

Section 3.  This is also found on page 8 and is to be completed by the employer when reverifying that an employee is authorized to work either because their List A or C document (other than a U.S. passport or Permanent Resident Card) has expired or the employee has been rehired within 3 years of the date the Form I-9 was originally completed:

• On pages 3-4 you will find useful and detailed instructions about reverifications and rehires.
• An important feature of the new Form I-9 is the instructions that employers must now reverify employment authorization when an employee provides an employment authorization expiration date in Section 1 and that if both Sections 1 and 2 indicate expiration dates triggering the reverification requirement, the employer should reverify by the earlier date.
• Although the instructions say that when reverifying employers have the option of completing Section 3 of a new Form I-9 or Section 3 of the previously completed Form I-9, after May 7, 2013, when the new Form I-9 becomes mandatory, it appears to me the employer’s only option would be to complete Section 3 of the new Form I-9.  The instructions state that the employer may attach just the page containing Section 3 (page 8), with the employee’s name entered at the top of the page, to the employee’s original Form I-9.  Do not discard the previously-completed Form I-9.

Retention Requirements.  The employer is required to retain only pages 7-8, which are the pages of the form on which the employee and employer enter data.  If copies of the documentation presented by the employee are made, those copies must also be kept with the forms.  The employer must have a properly completed Form I-9 for every current employee who was hired after November 6, 1986.  Once that individual’s employment ends, the employer must retain the form and, if applicable, copies of the supporting documents for 3 years after the date of hire or 1 year after the date of termination, whichever is later.  I strongly recommend that employers implement a method for tracking these dates and that it dispose of these records as soon as permitted.

Photocopies.  Making photocopies of the supporting documents is no substitute for the employer properly completing Section 2 and it certainly cannot take the place of completing Form I-9.  The single most important protection a company can have against a claim that it has knowingly hired an undocumented worker is to have a properly completed Form I-9 for each one of its employees hired after November 6, 1986.

E-Verify.  Similarly, even if a company uses E-Verify, it must still have a properly completed Form I-9 for its current employees.

Potential Penalties.  A company who fails to use the new version of Form I-9, to ensure that its employee properly completes Section 1, or to properly complete Sections 2 or 3 of the new Form I-9 is subject to civil fines ranging from $110 to $1100 per form.  The United States government is aggressively checking compliance through worksite audits conducted by field agents and forensic auditors.  I strongly encourage all employers to internally audit and assess their compliance utilizing the services of an attorney who has experience conducting such audits.

Do not delay your organization’s implementation of the new Form I-9.

**Note**:  The foregoing is not intended to be legal advice, nor should it be construed as such.  Each employer should consult with competent legal counsel about its particular circumstances and how best to implement the new Form I-9.