On March 8, United States Citizenship and Immigration Services (USCIS) issued a revised Form I-9, Employment Eligibility Verification, bearing an edition date of March 8, 2013, for immediate use by employers. The purpose of Form I-9 is for employers to document an employee’s identity and authorization to work in the United States. By way of background, all U.S. employers are required to complete a Form I-9 for all employees hired on or after November 6, 1986. Employers have a grace period to continue to use the previous versions of Form I-9 bearing an edition date of either February 2, 2009, or August 7, 2009; however, on May 7 (rather than May 8 as previously reported), use of the new Form I-9 will become mandatory. Employers that fail to comply may be subject to civil penalties. Accordingly, employers should incorporate the new Form I-9 edition into their compliance procedures as soon as possible, regardless of whether they complete and maintain their records manually or electronically. Employers should not have their current employees complete the new Form I-9, unless they need to reverify the continuing employment authorization of an employee whose work authorization is finite and is expiring. The form is for use for new employees. Employers may find the revised form here.
Form I-9 has historically been one page, with three sections. Section 1 is to be completed by the new employee no earlier than his or her acceptance of an offer of employment and no later than the first date of hire. Section 2 is to be completed by an authorized representative of the employer no later than three business days from the employee’s date of hire to ensure the employee has properly completed Section 1 and to verify the employee’s documents evidence identity and employment eligibility. Section 3 is to be completed by the employer to reverify that an employee with expiring employment authorization continues to have valid employment authorization after the date of expiration, as indicated by the employee in the first section of the form. The major revisions to the Form I-9 are as follows:
- The new form has a revised layout that now consists of two pages (in addition to the page listing acceptable documents to establish identity and employment authorization).
- The new form contains new data fields relating to the employee, including foreign passport number and country of issuance, telephone number, and e-mail address (the latter two being optional).
- The new form provides clearer instructions regarding its completion, including:
- Completion of Section 1 of the form by nonimmigrants;
- Completion of the form by employers when a new hire presents a receipt for a document rather than the actual acceptable document;
- How and when employers need to reverify an employee’s I-9 information;
- Which documents an employer may accept to establish the identity and employment authorization initially and upon reverification;
- A reminder to employers that they must complete the requisite information on the form, even if they attach copies of the new hire’s documents to establish identity and employment authorization; and
- A reminder that employers may not specify which documents the employee must present to establish identity and employment authorization.
Proper completion of Form I-9 is even more critical now that the revised version contains more explicit instructions. It remains to be seen how United States Immigration and Customs Enforcement (ICE) will address violations relating to improper completion of the form and whether errors will constitute technical or substantive violations, a distinction that impacts the severity of fines imposed on employers