Employers are now using the new Form I-9 (Revision 03/08/13N), which became effective on May 7, 2013, when verifying the employment authorization of new employees. In addition to the instructions on the form itself and the detailed information contained in the updated M-274 Handbook, employers should also be aware of and, where applicable, comply with of the following guidance provided by the U.S. Citizenship and Immigration Services (USCIS) during a meeting with members of the American Immigration Lawyers Association (AILA) following the release of the new Form I-9.
- Employers must provide new hires with the full, expanded I-9 instructions at the time they complete Section 1 of the I-9, not only the employee portions. Employers may not restate or reformat the I-9 instructions, but may laminate the official I-9 instructions for distribution to new employees.
- There are two new optional fields in Section 1, the employee’s telephone number and e-mail address. Although the form does not state this, the instructions confirm that these fields are optional. USCIS confirmed that there are new rules in the I-9 instructions for fields where, if no information is to be completed, “N/A” either must or may be noted. Therefore, it is best practice to ensure that “N/A” is used in all fields where there is no applicable information in both Sections 1 and 2. Note that if the employee has no other names, he or she must record N/A in the corresponding field.
- For employers who use electronic I-9 systems, pre-population of Section 1 of Form I-9 by electronic I-9 programs is not permissible, regardless of whether the preparer/translator section is completed and regardless of whether the employee provided the original information that is pre-populated. Employers should be aware that an electronic I-9 program that involves pre-population of employee information in Section 1 carries significant legal risk.
- Employers must use the new I-9 form for all reverifications. When the employee at hire presented documents that expire and need to be reverified, the employer may not use Section 3 of an outdated form to record the reverification of the updated documents. However, for a returning employee who is eligible for rehire on the original documents, the employer may complete Section 3 of the existing I-9, even if it is an outdated version, as long as the employee is returning within 3 years of the original hire and the I-9 documentation continues to be valid.
- The 3-day rule for completing Section 2 is based on the employer’s operations schedule. If the employer operates a business that is closed on the weekend, the 3-business days for the employer’s requirement to complete Section 2 does not include weekends. However, if the employer’s business runs through weekends or holidays, such as a hospital or production plant, the employer must complete Section 2 within 3 business days including the weekends and holidays, even if human resources or management staff is not available on such weekends or holidays.
- In addition to the new Form I-9, employers who hire foreign workers should familiarize themselves with the new electronic I-94 record and guide employees to properly record the information on Form I-9. With the implementation of the electronic I-94 process, employers will no longer see the I-94 record stapled to a passport, but a printed document from the U.S. Customs and Border Protection website.
- Employers must establish a policy regarding the completion of Form I-9 for employees with new identities. The newly updated M-274 Handbook states that employers whose employees come forward with new identities “should” complete a new I-9 and, if enrolled in E-Verify, submit a query through the E-Verify system. USCIS clarified that this is a suggested best practice but is not a requirement. Therefore, for employees who present documentation of a new identity, the employer should establish a policy to either: (1) complete a new I-9 and if applicable, complete an E-Verify query; or (2) update the existing I-9 form with the new identity information. Either way, employers should apply the policy consistently.
Rules regarding the verification of employment authorization are frequently updated or changed.