United States and Citizenship Services (USCIS) has posted contradictory information on the exact date that the new I-9 form (Rev. 03/08/13)N must be used. The revision date is referenced on the lower left hand corner of the form. The Federal Register notice indicates that prior versions of the form can no longer be used by the public effective May 7, 2013. Yet, the supplementary information part of the Federal Register notice provides that: “After May 7, 2013, all prior versions of Form I-9 can no longer be used by the public.” Federal Register Notice
As of March 28, I-9 Central states that employers must start using the new Form I-9 on May 7, USCIS Update. USCIS on its site related to USCIS forms notes, however, as to the Form I-9 version to use that: “After May 7, 2013, only the 03/08/13 will be accepted.”
The March 2013 edition of the E-Verify Connection newsletter published by USCIS states that: “Beginning May 7, 2013, only the new Form I-9 with revision date March 8, 2013 may be used.”
What to do?
Employers who fail to use the new Form I-9 on May 7 can at least point to the confusion created by the USCIS postings as to any enforcement action against them for failure to use the correct form. USCIS has already indicated on I-9 Central that employers can correct the error of using the wrong version of the Form I-9 by:
Drafting an explanation of the situation
Attaching the explanation to the completed outdated Form I-9; and
Signing and dating the explanation
Thus, it would appear that USCIS should be apply a “reasonable regulator” standard and accept either a May 7 or May 8 start date based on the above-referenced inconsistencies.
The New M-274
USCIS has also issued a new version of the M-274 Handbook For Employers (Rev. 03/08/13)N. The overall length of the new Handbook only increased by one page post issuance of the new two page form. There are some interesting changes including that a laminated or unsigned social security card may be accepted as long as “it looks genuine and related to the person presenting it.” In addition, the M-274 provides direction on what to do when an employee presents documentation of a new identity. The new form and Handbook are available on I-9 Central: USCIS Website.
For more information regarding worksite compliance, the new Form I-9, or the new M-274, please contact one of our immigration attorneys. For a description of Cox Smith’s Immigration practice group with a full list of the attorneys, please refer to this link.