Employers have certain responsibilities under immigration law during the hiring process. Employers must verify the identity and employment authorization of each person hired after Nov. 6, 1986 by completing Form I-9, Employment and Eligibility Verification. Effective January 22, 2017, United States Citizenship and Immigration Services (USCIS) requires all employers in the United States use the new version of Form I-9. The form can be completed by printing it and filling it out manually, filling it out electronically and then printing and signing it or using an electronic I-9 vendor. Employees must complete Section 1 no later than their first day of employment, and employers must verify their documents using the List of Acceptable Documents attached to the form. Section 2 of the form must be completed by the employer no later than close of business on the third day after the date of hire.
These forms must be retained for three years after the hire date or one year after date of termination whichever of the two dates is later. The retention section of the USCIS website provides a useful chart to assist in calculating the retention date. (https://www.uscis.gov/i-9-central/retain-store-form-i-9/retaining-form-i-9)
Employers who violate the law may be subject to civil fines, criminal penalties, debarment from government contracts, payment of back pay and rehiring the individual. In 2016, fines were increased 96% for I-9 paperwork violations, including using an outdated form. The prior range of $110 – $1100 increased to $216 – $2156 for each form violation occurring after November 2, 2015.
The new smart Form I-9 will hopefully improve compliance by guiding employees and employers throughout the process using features such as drop-down menus, hover text, and error-notifications to reduce errors in completion of the form. This may be quite helpful as the new presidential administration focuses on increased worksite enforcement efforts. The new version of Form I-9 can be downloaded from the USCIS website at www.uscis.gov/I-9. There is an option to download the fillable, interactive PDF version or a paper version.
The new Form I-9 includes “smart features” and content-based changes. Some of the smart features include: alerts when required fields are blank or incorrectly completed, notification when information provided by employees is not consistent with employment-authorized status as indicated in Section 1. The form automatically marks fields that do not apply to the employee’s selected status with “Not Applicable.” There are drop-down menus in the List A, B and C document fields of Section 2 to help employers know which documents to accept.
The content-based changes include:
- Replaced “Other Names Used” field with “Other Last Names Used”.
- Employees must indicate whether the number indicated in Section 1 is an Alien Registration number or a USCIS number.
- Certain foreign nationals must enter either their foreign passport information or their Form I-94 information, but not both as in the prior versions of Form I-9.
- Allowing for multiple preparers and/or translators for completion of the form. If the employee does not use a preparer or translator, the employee must check a new box labeled “I did not use a preparer or translator.”
- A new field was added at the top of Section 2 for “Citizenship/Immigration Status”. The employer must input the number corresponding with the citizenship or immigration status input by the employee in Section 1.
- A new field was included that allows employers to input additional information that is currently being notated in the margins of the previous Form I-9.
Section 3 of the Form I-9 regarding reverification has not changed, but any reverifications performed after January 22 must be completed using the new form.
While the new form may make the Form I-9 verification process easier, it’s important to remember that the employer representative must be in the physical presence of the new hire and review in person the documents being presented. Any employee of the company can serve as the employer representative, but that person should be trained and fully understand the requirements of the I-9 process. This is especially important for remote hires. USCIS requires that the new employee be given a copy of the instructions which have increased from nine pages to fifteen pages. A link to the instructions is provided at the top of the smart Form I-9.
Employers should review their hiring and onboarding practices and establish appropriate employment verification practices to avoid errors that could result in costly penalties and fines.
https://www.uscis.gov/i-9-central provides a complete list of Civil Fines and Criminal Penalties for Form I-9 and Immigration-Related Employment Discrimination Violations and other I-9 resources.