On November 14, 2016, U.S. Citizenship and Immigration Services (“USCIS”) issued a revised Form I-9 which is required by employers to verify employment authorization. The old I-9 form with a revision date of March 8, 2013, may only be used until January 21, 2017. Employers should transition to using the new form as soon as possible. Immigration & Customs Enforcement (“ICE”) requires use of the new form no later than January 22, 2017.
Employers must maintain an I-9 form on file for every employee on their payroll. The purpose of the I-9 form is to have the employer establish the employee’s identity and authorization to work in the U.S.
New Form I-9 Changes
The digital version of the revised I-9 form is a welcome change for employers as it is more user friendly and will automatically flag any missing fields. The new “smart” I-9 may be downloaded at https://www.uscis.gov/i-9.
Some of the new changes include:
- The three page I-9 form is now separate from the long instructions;
- Page 2 has a designated space for employers to note additional information regarding any unusual situations, rather than having to write in the margins or attaching a memo;
- The form checks whether required fields are entered correctly. For example, the form will notify the user of any missing fields, dates that are not inputted in mm/dd/yyyy format, and social security numbers that are missing a digit;
- Drop-down lists and calendars;
- The form will automatically populate “N/A” in certain subsequent fields depending on the answers provided;
- Embedded instructions that pop-up when the cursor hovers over a particular field;
- Buttons that allow users to access instructions, start the form over, and print; and
- A QR barcode is propagated once the form is completed and printed to facilitate review by auditors.
It should be noted that the new form is not “electronic I-9 software.” Employers that do not use digital I-9 software must still print the form and obtain handwritten signatures. Software vendors providing digital I-9 services will be required to update their Form I-9 and incorporate the new features. However, the responsibility falls on the employer to ensure that the new digital form is compliant.
General I-9 Tips
On August 1, 2016, USCIS announced a significant increase in fines for I-9 violations.
Here are a few tips to prevent common I-9 errors:
- Employee Timing: The employee must fill out Section 1 of the I-9 no later than the first day of employment. It may be done earlier, but only after an offer of employment has been extended and accepted.
- Employer Timing: The employer must complete Section 2 of the I-9 no later than the 4th day of employment – 3 days after the first day of employment (the so-called “Thursday rule”).
- Original Documents: The employer must request and examine the original work authorization documents of the employee. A photocopy or scanned copy will not suffice. This means that you cannot verify an employee remotely using digitally scanned or faxed documents.
- Never Accept Expired Documents from New Hires. The only exception is a 90 day grace period for new hires that are U.S. Citizens or permanent residents that have already applied for a replacement document – i.e. a replacement of a U.S. passport, state driver’s license, etc.
- Reverification: Employers should not re-verify the I-9 of an existing employee who is a U.S. Citizen or permanent resident merely because his/her documents have expired. However, foreign national workers employed with temporary employment authorization must be carefully tracked and timely re-verified prior to the expiration of their I-94 or work permit. In certain instances, there is automatic continuing work authorization for a limited period of time for certain foreign nationals who have timely filed for an extension of their work authorization (i.e. TPS, H-1B, L-1, etc.). Contact counsel before terminating someone in this situation.
- I-9 Errors: It is a good idea to periodically audit your I-9s to make sure that you have one on file for every active employee. In addition, it is important for HR to ensure that all applicable I-9 fields are completed.
- Retention: Maintain I-9 records throughout employment and for 3 years after termination. This is a simplified, but practical version of the retention rule.