On March 8, 2013, a new version of the Form I-9 was released.  It has been more than three and a half years since US Citizens and Immigration Service (USCIS) last released a new version of the Form I-9.  In addition, the Handbook for Employers (M-274) guide to using the Form I-9 has been updated to correspond to the new form.

The new edition of the Form I-9 took effect immediately on publication.  However, employers can continue to use the previous versions of the Form I-9 (Rev. 08/07/09 and Rev. 02/02/09) for 60 days after the new Form I-9 was released.  This means employers must start using the new form and discard its predecessor no later than May 7, 2013.

Notable Changes to the Form

The key changes you will see on the new form are:

  • New data fields, including the phone number, email address, and the employee’s foreign passport information which will be required in some instances;
  • Expanded form instructions; and
  • Revised form layout, increasing the paper form from one to two pages.

If you’re an employer, the change that will impact you the most will be these new fields.  You will have to train hiring managers to understand the significance of the new fields, and provide compliance guidance that ensures that the new Form I-9 will be filled out properly.  Employers do NOT have to complete a new Form I-9 for current employees if they already have a completed I-9 on file for that worker (unless reverification is required).  It is recommended to use the new form only with new hires or employees who need I-9 reverification, as unnecessary verification of your employees could trigger a discrimination complaint and certainly create unnecessary work.

Given that the new Form I-9 will be used with every new hire, and E-verify is being mandated by many states, companies may want to consider taking this opportunity to change to an electronic system. Since employers are required to integrate the new Form I-9 into the business process, examining the possibility of an electronic Form I-9 may improve both compliance and efficiency.  However, be sure the electronic system is capable of implementing the new Form I-9 and meets or exceeds the government’s electronic Form I-9 requirements.

Purpose of the Form

Form I-9 is used for verifying the identity and employment authorization of individuals hired to work in the United States.  All US employers must ensure proper completion of Form I-9 for each individual they hire.  Both employees and employers (or authorized representatives of the employer) must complete the form.  On the form, an employee must attest to his authorization to work in the United States.  The employee must also present his employer with acceptable documents (as described on the Form I-9) evidencing identity and employment authorization.  The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the employee and then record the document information on the Form I-9.  Employers must retain each Form I-9 for a designated period and make it available for inspection when requested by authorized government officials.

Filling Out I-9s

On or before the employment start date, employers must provide a new hire with a Form I-9, its instructions and the lists of acceptable documents to establish identity and work authorization.  The employer should ensure that the new employee legibly and properly completes Section 1 of Form I-9 and signs the form or acknowledges the signature no later than the first day of hire.  The employer must complete Section 2 of the form within three business days from the employee’s day of hire. 

An employer cannot request a Social Security number when the employee is completing Section 1 unless the employer is registered for and using E-Verify.  The employee must provide a physical address, not a post office box.  The new employee has three business days from the employment start date to present the necessary documents to establish his identity and employment authorization (as opposed to the requirement to complete the Form I-9 on the first day at the new job).  The employee chooses which documents to provide.  USCIS has issued a clarification on how to calculate the three business days for Form I-9 purposes.  According to instructions for E-Verify, the date of hire is counted as day zero, not day one.  But, the safest approach to ensure compliance is to count the date of hire as day one.

Moreover, the new form clearly requires employees who indicate on Form I-9 that they are “aliens authorized to work” to identify specifically their I-94 number and provide information regarding their passport.  The instructions indicate that the expiration of the authorized employment period should also be included on the form.

Employers are responsible for completing Sections 2 and 3 of Form I-9.  The new employee must provide either one original document from List A or one original document from List B (regarding identity) and one original document from List C (regarding work authorization).  If an employee provides an acceptable document from List A, the employer should neither request additional documentation nor complete any portion of the List B or List C parts of Section 2 of the form.

One important distinction: Employers registered for E-Verify must, when an employee presents a document from List B, require a document with a photograph.

Employers are responsible for reviewing acceptable unexpired original documents and for comparing the information on the documents to that in Section 1.  The employer cannot specify which documents employees may present from the Lists of Acceptable Documents.  The employer is only to review the original documents presented, confirm that they reasonably appear to be genuine and that they relate to the new employee.

The Immigration Reform and Control Act of 1986 allows, but does not require, employers to make a copy of Form I-9 documents presented by the employee.  However, if the employer copies documents for one new employee, it must do so for all new employees.  Copies of documents should be attached to Form I-9 for audit purposes and I-9 files should be kept separate from all other employee files. Federal officers have informally commented that they prefer to see a copy of the documents when going through audits.  Having the copies readily available can go a long way to show that an employer has complied with the Act’s verification process in good faith.

To File or Not to File

Do not file Form I-9 with USCIS, US Immigrations and Customs Enforcement (ICE), or the Department of Labor (DOL).  Employers must have a completed Form I-9 on file for each person on their payroll who is required to complete the form.  A Form I-9 must be retained and stored by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is longer. The form must be available for inspection by authorized US Government officials from DOL, the Department of Homeland Security (DHS), or Department of Justice (DOJ) but, it is not filed with any government entity.

Penalties

Officials with DHS, specifically ICE, know that most US employers are not fully Form I-9 compliant, so employers are targeted for enforcement crackdowns.  ICE has engaged in a record-breaking number of Form I-9 audits and inspections in the last two years and ICE enforcement numbers have climbed to historic highs.  This surge includes a 500% increase in penalties from worksite enforcement actions. Audits have resulted in more than $50 million in sanctions with average penalties for each company of $110,000.  Not to be outdone, USCIS, DOL, and the Fraud Detection and National Security Unit are also conducting investigations and worksite enforcement activities. 

Many such enforcement actions have resulted in the indictments of company executives, owners and managers on felony charges for harboring illegal aliens, money laundering, and/or knowingly hiring illegal aliens.  At the same time, DOJ’s Office of Special Counsel for Unfair Immigration-Related Employment Practices has pursued a record number of complaints alleging discrimination in the Form I-9 and E-Verify process. 

The government’s strategic enforcement plan will continue through 2014.  It is no secret that the relevant agencies and departments intend to continue targeting employers by pursuing effective worksite enforcement.  The audits will subject employers to fines for substantive and uncorrected technical violations.  By establishing and maintaining effective Form I-9 compliance policies, employers can avoid potential liability and mitigate potential violations.  Employers should implement effective I-9 procedures that result in accurate, consistent and uniform preparation, maintenance and, ultimately, disposal of the forms.  Proper completion requires knowledge of complex and often confusing rules and diligence to maintain accuracy and uniformity.

Employers may balk at investing significant time and resources on reviewing regulations and guidance in the completion of a simple two-page form such as the Form I-9.  However, given the government's ongoing focus on worksite enforcement, it is critical that employers recognize that failure to comply with immigration and employment laws may be time-consuming, financially draining, and a potential public relations disaster.

Not only should employers make certain that they do not hire or continue to employ workers they know to be ineligible for employment, but they must also ensure that they are in full compliance with all USCIS requirements pertaining to employment eligibility verification and Department of Labor laws.  Establishing internal "best practices" to avoid liability is critical.  Bringing in experienced counsel to train human resources personnel on all aspects of immigration compliance, provide regular trainings and update compliance policies for personnel to follow can significantly mitigate damages, reduce exposure and minimize costs for the employer.