On March 7, 2013, U.S. Citizenship and Immigration Services (USCIS) announced its publication of a revised Form I-9. This form is used by employers to verify employees’ identification and work authorization. USCIS is encouraging employers to begin using the new form immediately, but there will be a 60-day grace period before its use becomes mandatory. Employers must use the new form, which is marked with a revision date of 3/8/13, beginning on May 8, 2013. The new form should only be used for new hires and for reverification of existing employees when required by law.
Employers who use electronic I-9 forms should be sure to update the electronic system. Employers using hard copy forms should ensure that all employees responsible for I-9 compliance are aware of the new form. The new form, along with its instructions, is available at http://www.uscis.gov/files/form/i-9.pdf. This transition presents a good opportunity for employers to revisit their I-9 policies and perhaps consider conducting a compliance audit.
The new form does not substantively change the I-9 process nor the list of acceptable documents. It revises the instructions, revamps the layout and adds new data fields in part 1. The changes are intended to minimize errors in the completion of the form. The instructions, which have expanded from two pages to six, still leave some major pitfalls for employers unaddressed.
For example, as we approach summer, a time when many companies hire interns and recent graduates, it is worth noting a limitation on hiring foreign student graduates because this is not something addressed in the instructions. Most foreign students are entitled to one year of post-graduate work authorization so they can work in a field related to their degree. Some who pursued degrees in technical areas of study such as math, science or engineering are eligible for an additional period of work authorization. That additional period of work authorization, however, does not entitle them to work for any employer they choose; there are limitations. In an effort to encourage employers to participate in E-Verify, a voluntary federal program to check employees’ identity and work authorization, USCIS has mandated that foreign students with this extended period of work authorization can work only for employers who participate in E-Verify. Employers must be aware of this and know that they cannot hire these individuals unless they participate in E-Verify. While this is not covered in the instructions to the Form I-9, it is addressed in the 66-page Handbook for Employers, Guidance for Completing Form I-9. This is also a good resource to have alongside the instructions and can be located at: http://www.uscis.gov/ files/form/m-274.pdf