New I-9 Form Released - U.S. Employers Should Begin Using New Form to Verify Employment Eligibility of All Newly Hired Workers

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On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) published a Federal Register notice announcing that Form I-9 Employment Eligibility Verification has been revised. The newly revised Form I-9 makes several improvements designed to minimize errors in form completion. The key revisions to Form I-9 include:

  • Adding data fields, including the employee's foreign passport information and telephone and email addresses (if applicable).
  • Improving the form's instructions.
  • Revising the layout of the form and expanding the form from one to two pages (not including the instructions and the List of Acceptable Documents).

While the new form becomes mandatory May 8, 2013, employers should begin using the new form immediately for all new hires where possible, and for re-verification of the work authorization of existing employees in lieu of completing Section 3 of the original I-9 forms. Unless re-verification is necessary, new I-9 forms should not be completed for existing employees.

BACKGROUND

Since November 1986, employers have been required to utilize Form I-9 to verify the identity and employment eligibility of all new employees, whether U.S. citizens or noncitizens. Newly hired employees are required to complete Section 1 of the form no later than the first day of employment (but never before a job offer has been accepted). Within three days of hire, new employees must present documents to establish identity and authorization to work in the United States. Employees must review the list of Acceptable Documents included with the I-9 Form and select which documents to present.

Employer representatives are tasked with confirming that employees have properly completed Section 1 of the form, reviewing the documents presented, and completing Section 2 of the form within three days of hire. Employers are encouraged, but not required, to make copies of documents presented by employees (must be consistent for all employees).

Employers are required to retain each I-9 Form for the duration of an individual's employment and for an additional period after the employment ends -- either three years after the date of hire or one year after the employment ends, whichever period is longer.

Employers are subject to penalties for failing to carry out their I-9 obligations (and even harsher penalties for knowingly employing unauthorized workers). U.S. Immigration and Customs Enforcement (ICE) is the agency primarily responsible for enforcing the I-9 laws and regulations. ICE conducts I-9 audits of employers and has significantly expanded the use of this enforcement tool over the last several years.

To ensure compliance, and to minimize potential penalties, employers should ensure that their I-9 Forms and processes are in order, including carrying out regular periodic self-audits.

The BakerHostetler Immigration Team assists employers in carrying out their I-9 and E-Verify obligations and is available to answer your questions and provide guidance, including carrying out I-9 training and assisting with self-audits. Feel free to contact Matthew W. Hoyt at mhoyt@bakerlaw.com or 614.462.2650; Pamela D. Nieto at pnieto@bakerlaw.com or 713.646.1372; or any member of BakerHostetler's Employment and Labor Group.