Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to complete a Form I-9 for each new employee hired which serves to verify the identity of each new employee and to ensure that the new employee is authorized to work in the United States. Effective January 22, a new Form I-9 is required for employment verification. The prior version, which has been effect in since 2013, will become obsolete on that date. The new Form I-9 can be retrieved on the United States Citizenship and Immigration Services (USCIS) website, at the following link. (http://www.uscis.gov/I-9)
Organizations that fail to use the new I-9 form on or after January 22 will be exposed to penalties, which recently nearly doubled. In many ways, the new I-9 form is similar to its previous version, but some individual fields and instructions for completing the form have been revised. The acceptable documents list and retention requirements have remained the same.
There are three ways for an employer to complete Form I-9:
- Print it and fill it out manually;
- Fill it out electronically, then print and sign it; keeping in mind that using the online “smart” version of the form does not qualify as a compliant electronic I-9. If the online version is completed, it must be printed and signed; or
- Use an electronic I-9 vendor, in which case the employer should verify that the vendor has updated the form on and after January 22.
The newest version of Form I-9 is called a “smart I-9” because it provides a fillable, interactive PDF option that enables users to complete the form online before printing and signing a hard copy of the form. This form limits options for further responses based on information previously provided. It auto-populates some fields based on information entered elsewhere on the form and flags errors and fields in which information is missing (N/A must be inserted if a field is not applicable). It provides a link to the form instructions (which now number 15 pages rather than six) and drop-down selections for forms of accepted documentation, and the form includes additional instructions for specific fields that are available by hovering over a question-mark icon that appears above a field within the PDF. A new text field permits employers to enter details regarding special situations that are not specifically addressed in the form. Be warned, however. The use of the “smart I-9” does not provide a safe harbor against immigration enforcement, is not integrated with E-Verify or other HR systems, and cannot store information or enable reporting.
One modification to the new I-9 form lessens the administrative burden on foreign workers. If the new hire attests to being a foreign national authorized to work in the United States, he or she may provide either an alien registration number, Form I-94 admission number, or foreign passport number. Previously, foreign nationals were required to provide both an I-94 number and foreign passport information in order to obtain work authorization.
The new form allows for up to five preparers and/or translators to sign and date the form in his or her own field. The prior version only contained one field for potentially multiple preparers and translators to sign. If the new hire does not use a preparer or translator, he or she will be required to check a box indicating as such affirmatively.
Despite these technological advances, it is important to note that the new Form I-9 requires that the employer representative verifying employment eligibility be in the physical presence of the individual being verified and requires that the employer representative review in person the documents being presented. The USCIS regulations specifically state that using FaceTime or Skype for the new hire verification process is not permitted.
Employers are not required to complete the new I-9 form for existing employees unless reverification of employment is necessary as the result of expiration of a worker’s employment authorization. Section 3 of the I-9 form regarding reverification of employment status has not changed, but any reverifications performed after January 22 must be completed using the revised form.
Adding to the stress of learning the intricacies of the new I-9 form is a new Department of Justice (DOJ) regulation that took effect on January 18 and provides that employers may be charged with national origin discrimination without evidence of intent to harm. This regulation serves to enforce and clarify the IRCA’s prohibition against discrimination as “the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for such differential treatment, and regardless of whether such treatment is because of animus or hostility.” Before the enactment of this regulation, the DOJ could not effectively pursue charges against employers if hiring practices were considered discriminatory but were not carried out with intent to harm. In addition, this regulation expands the prohibition on discrimination based on national origin or citizenship beyond the I-9 verification process and thus applies to the E-verify and onboarding process as well.
In light of these new regulations, and in light of the Trump administration’s stated intention to focus on immigration enforcement, we recommend that employers examine their hiring policies as soon as possible and establish clear and compliant employment verification protocols which include the use of the new Form I-9.