[author: Manuel H. Cairo]

The Immigration Reform and Control Act of 1986 requires employers to verify the identity and employment authorization of all employees hired after November 6, 1986. To comply with that legal obligation, the Form I-9, Employment Eligibility Verification (Form I-9), was created for employers to use for each employee hired. Employers are further required to maintain completed Forms I-9 throughout the respective employee’s employment and thereafter either for three years after the date of hire or for one year after employment is terminated, whichever is later. An employer’s Forms I-9 are subject to inspection by U.S. Immigration and Customs Enforcement, U.S. Office of Special Counsel and the U.S. Department of Labor to ensure compliance with various immigration, anti-discrimination and wage and hour laws.

Since its introduction, the Form I-9 has undergone several revisions. Past versions no longer valid for use include those bearing the following revision dates: May 1987, November 1991, May 2005, November 2007, June 2007, June 2008 and February 2009. An employer’s use of an expired Form I-9 for completing the requisite verification process amounts to an administrative violation that may result in fines in the event of an inspection.

The current Form I-9 with the revision date of August 7, 2009, is set to expire on August 30, 2012. U.S. Citizenship and Immigration Services (USCIS) recently announced that employers should continue using the current version of the Form I-9 after the expiration date. USCIS will provide updated information on the replacement Form I-9 when it becomes available.

USCIS already has a new Form I-9 in the works but it will not publish the final revised Form I-9 before the expiration date of the current Form I-9. Indeed, USCIS published a proposed version of the new Form I-9 on March 27, 2012, and accepted comments on that proposed form until May 29, 2012. We anticipate the revisions incorporated in the new Form I-9 will collectively result in the most significant revision of the Form I-9 since its last major revision in November 1991. Should that be the case, Snell & Wilmer will host seminars after USCIS publishes the revised Form I-9. Those seminars will be designed to assist in navigating and understanding the new Form I-9.