New Employment Eligibility Verification Form I-9 Published on March 8, 2013; Mandatory by May 7, 2013

by Proskauer Rose LLP
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A newly revised Form I-9 was published on Friday, March 8, 2013 and becomes the exclusive version in use as of May 7, 2013. Until that date, employers may continue to use prior versions of the form, dated 02/02/09 and 08/07/09. No substantive changes in the applicable law or regulations were made with regard to the I-9 process, although the new form invites applicants to voluntarily provide additional information not required by the regulation, including the employee's telephone number and/or e-mail address. The new form is available at the USCIS website at: http://www.uscis.gov/files/form/i-9.pdf. USCIS advises that Form I-9 was revised to "make several improvements designed to minimize errors and form completion. The key revisions to Form I-9 include:

  • Adding data fields, including one for the employee's foreign passport information;

  • Improving the form's instructions; and

  • Revising the layout of the form, expanding it from 1 to 2 pages.

USCIS Background on the I-9 Form

Form I-9 contains three sections. The purpose of Section 1 of the form is to collect, at the time of hire, identifying information about the employee (and preparer or translator if used), and for the employee to attest to whether he or she is a U.S. citizen, noncitizen national, lawful permanent resident, or alien authorized to work in the United States. The employee must also present documentation for review evidencing his or her identity and authorization to engage in this employment. The purpose of Section 2 of the form is to collect, within 3 business days of the employee's hire, identifying information from the employer and information regarding the identity and employment authorization documentation presented by the employee and reviewed by the employer. The purpose of Section 3 of the form is to collect information regarding the continued employment authorization of the employee. This section, if applicable, is completed at the time the employee's employment authorization and/or employment authorization documentation recorded in either Section 1 or Section 2 of the form expires. This section may also be used if the employee is rehired within 3 years of the date of the initial execution of the form and to record a name change if Section 3 is otherwise completed.

Let's Look at These Changes

The Two-Page Form

The actual form has been expanded from 1 to 2 pages (not including the form instructions and the List of Acceptable Documents). The lay-out is clearer and easier to manage. The division of the form into 2 pages, the first relating to the employee information and attestation, and the second to the employer review and verification, should be easier to manage administratively as well.

New Data Fields

USCIS included 2 new data fields in the Employee Information Attestation section, e-mail address, and telephone number. Although the form does not specifically say so, the instructions indicate that provision of this information is voluntary, and explains that it would be useful to USCIS to have this information to contact the employee if information on the I-9 form does not appear to be consistent with data in the Department of Homeland Security or Social Security Administration databases. You may draw your own conclusions as to whether this is benevolent or sinister.

Similar concern was expressed in the past when a data field for the U.S. social security number was included, as provision of this information is only required when the employer is participating in the E-Verify program. This is made clear in the instructions.

List of Acceptable Documents and the Handbook for Employers

The list of acceptable documents has not changed, but List C does provide an important clarification as to when a social security account number card is acceptable as a List C document. It provides the critical explanation that a social security card that is noted "not valid for employment" is not acceptable and cards noted "valid for work only with INS authorization" or "valid for work only with DHS authorization" are not in and of themselves, acceptable List C documents.

The form makes reference to relevant portions of the Handbook for Employers (M-274) which can be found at: http://www.uscis.gov/files/form/m-274.pdf and remains the primary reference source for employers in completing Form I-9. The Handbook has been revised to reference this newly updated Form I-9. Employers should also be advised to reference I-9 central on the USCIS website, www.uscis.gov/I-9central for the latest information and interpretations relevant to the use of the I-9 form.

Expanded Form Instructions

The form instructions are revised and expanded, particularly with reference to issues that have been a source of great confusion, such as how to record "receipts" as documents and when are "receipts" acceptable documents.

How Do Employers Implement the New I-9 Form?

You Have Until May 7 to Implement

Employers can immediately commence use of the new I-9 form, but do have a grace period, until May 7 to implement the form. Employers who maintain "paper" I-9 forms should not find the transition difficult, as there are no substantive changes, and the layout of the new I-9 form should be easier to use.

Employers that use an electronic filing system, will rely on their vendors who include the additional "voluntary" information fields, but should expect no other impact on the process.

It is important to remember that it is at the discretion of the employee, whether to provide the e-mail address and telephone number and should not be required by the Employer.

Do Not Re-do I-9 Forms Executed Prior to May 7, 2013

Section 1 of Form I-9 must be completed by the newly hired employee, no later than the first day of employment and Section 2, must be completed by the employer's representative within 3 business days of the employee's first day of employment. If these events occur on May 7 or prior, using the acceptable prior versions of Form I-9, they should not be changed or updated. It would be prudent to start using the new form as soon as possible, to avoid transition issues.

Is the New I-9 Form About to Become Outdated?

Many organizations commenting on the new I-9 form expressed concern, aware of the fact that United States Custom and Border Protection is planning within the next several months to convert to a paperless I-94 card system. There is much concern over this initiative, as the I-94 card which is issued to virtually all non-immigrants who are admitted into the United States, is a critical document which evidences the individual's current authorized status in the United States, and is presented to many authorities, such as the Social Security Administration, state drivers' license authorities, banks, and to employer's in conjunction with execution of I-9 forms to confirm legal status in the United States. Employer organizations begged USCIS to defer publication of the new I-9 form until this initiative was completed so that instructions for the I-9 form and the Handbook for Employers and the Form I-9 itself could accommodate alternative evidence protocols when the hardcopy of the I-94 ceases to exist.

USCIS chose not to defer implementation.

Proskauer will be prepared to inform our clients and provide all necessary guidance, both as to the current implementation of the new I-9 form, and adjustments that might be required because of initiatives such as the paperless I-94.

You should feel free to reach out to your contact at Proskauer's Immigration Practice Group for guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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