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Reger Rizzo & Darnall Client Alert. (December 2, 2016)

Form I-9 is used to verify that all employees hired after November 6, 1986, are eligible to work in the United States.  People who are not subject to verification include those not yet offered employment, casual hires, employees of independent contractors, volunteers, non-employees, and a few others.  On January 22, 2017, employers are required to use the new Form I-9 to verify employment eligibility.  Employers may continue using the current version dated March 3, 2013, until January 21, 2017.  

The employer must review an employee’s documents and attest under penalty of perjury on Form I-9 that documents establishing both employment authorization and identity were produced.  The review must be done by the person signing the attestations, and that person must physically see the employee with their documents. According to 8 CFR §274a.2 (b)(1)(ii), the employee must complete the attestation on the date of hire and the employer must examine documents within three business days of hire, unless the employee is a hire for less than three business days.  Forms cannot be backdated.  It is very important that employers complete the Form I-9 for each employee and that they do it properly, as errors can be very costly.

The revised Form I-9 has new features to help with completing the form properly, but some of these tools can only be enabled if the employer uses the PDF version of the Form I-9 online.  For instance, most fields have an icon that hovers over the field and provides further instruction, helping to avoid unintended errors.  In addition, missing information will be highlighted, and the page cannot be saved until all of the required fields have been completed.  The new form also prevents over documentation, which can result in the imposition of a fine on employers.  For example, if a document is accepted from a List A document, then other sections of the form that would not be appropriate based on the document selected will automatically indicate “N/A”, thereby preventing an employer from completing those fields, or over documenting.  

A few highlights of the changes made on the new form are as follows:  

  • Section 1- the foreign national can list their Alien Registration Number OR Form I-94 Admission Number OR Foreign Passport Number (previously, they would have to list the I-94 and passport);
  • Translator- the employee can now check whether or not they have used a translator or preparer;
  • Section 2 provides a box for the employer to list the employee’s citizenship or immigration status; and
  • Section 2 now contains an additional information box which allows employer’s to include any clarifying information if an employee has a unique employment authorization status which would require additional notes.  The termination date can also be written in this box.
  • In addition, there have been changes to the instructions section of the form, which has grown in length.  A few of the notable changes include the following:
  • The employee can complete Section 1 once they have accepted the job, but not before.  The employee must complete Section 1 by the end of their first day of work.  
  • Including a social security number is optional except for those employers that use E-Verify.  
  • New hires are warned about the consequences of making a false claim to U.S. citizenship. 
  • An employer cannot insist on which document an employee presents as long as they meet the requirements;
  • A name change should be noted when completing Section C with regards to a rehire or re-verification.
  • Section C can be used for rehires only within three years of the original I-9.
  • It is important to complete the I-9 Form in a timely manner.  
  • Do not re-verify the documents of U.S. citizens, permanent residents, and conditional permanent residents, as well as certain asylees and refugees.
  • In addition, do not re-verify List B documents such as driver’s licenses that have expired after hire. 

On August 1, 2016, United States Citizenship and Immigration Services (“USCIS”) announced drastically increased fines for I-9 paperwork-related errors.  Fines have increased from a range between $110 to $1,100 to new amounts ranging from $216 to $2,156 per I-9.  The new Form I-9 is meant to help employers avoid costly penalties.  The Trump administration has indicated that it will be increasing corporate audits to make sure that companies are complying with record-keeping requirements to prove their employees are eligible to work in the U.S.  Now, more than ever before, it is essential to make sure these forms are being properly completed to avoid unwanted fines and audits.  

Employers must be certain they use the new form beginning on January 22, 2017, and that the forms are completed correctly to avoid costly errors.  A seasoned immigration attorney should be consulted to assist in compliance issues with these forms as well as providing I-9 compliance training.