Employment Law Update

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Employers Must Begin Using New I-9 Form By January 22, 2017

The Immigration Reform and Control Act of 1986 requires that employers verify the employment eligibility of all new employees.  The I-9 form was introduced for this purpose in 1987 and has been repeatedly updated.  The newest (eleventh) version of the I-9 was issued by the United States Citizenship and Immigration Services (USCIS) on November 14, 2016 and replaces the 2013 version of the form.  Use of the new form becomes mandatory on January 22, 2017.  The new I-9 changes the existing content of both the form and the instructions.  Additionally, a so-called "smart" version of the I-9 will allow employers to fill out the form on-line.  USCIS states in its press release that the "[c]hanges are designed to reduce errors and enhance form completion using a computer."

The list of acceptable documents that employees may present in order to establish identity and employment authorization remains unchanged. 

The revised I-9 includes a greatly expanded 15-page instruction document in addition to the form, which remains 3-pages.  (The 2013 instructions and form combined were only 9 pages).  The instructions have also been separated from the form, in keeping with the format of other USCIS forms.  The revised instructions include an expanded explanation for each item that must be completed on the form.  Other changes include: the addition of prompts to assist in entering the correct information; the requirement that employees need only enter other "last names" they have used, if any, and not all "other names used", to protect  transgender and other employees who may wish to maintain the confidentiality of prior first names; the ability to enter multiple preparers and translators; a dedicated area for including additional information rather than having to add it in the margins, and; a supplemental page for the preparer/translator.

The revised Form I-9 also includes new features intended to make the form easier to complete on a computer, including: error notifications that will automatically indicate if the information entered in certain fields is inconsistent with the immigration status indicated by the employee in Section 1 of the form; drop-down lists, hover-text and calendars to aid completion; the ability to access the complete instructions while working on the form; the ability to clear the form and start over, and; on-screen instructions for each field.   When the employer prints the completed computerized form, a quick response (QR) code is automatically generated, which can be read by most QR readers.  USCIS intends that the QR code can be used to streamline the audit process in the event of a review by Immigration and Customs Enforcement.

Both the new computer-friendly version and the traditional pdf-for-printing versions of the
I-9 can be found on the USCIS website.  USCIS notes that I-9 forms obtained from its website are not considered electronic I-9 forms under Department of Homeland Security regulations, such as forms submitted through the e-verify process, and cannot be electronically signed.  Regardless of the method used to complete the new form ā€“ by hand or computer ā€“ employers must print a hard copy of the form, then sign and date the hard copy by hand where required.  Employers are still required to retain an Iā€“9 form for as long as an individual works for the employer and for the required retention period after termination of the individual's employment, which is either three years after the date of hire or one year after the date employment ended, whichever is later.

Failure to comply with the I-9 requirements can subject employers to civil penalties ranging from $216 to $2,156 per form.  The most common violations are the failure to complete and/or retain I-9 forms.  Employers may also face penalties for other I-9 related violations such as document fraud, document abuse, and unlawful discrimination against an employment authorized individual.

If you have questions about the I-9 form, please contact:

Chuck Bacharach
Bob Kellner