U.S. Citizenship and Immigration Services (USCIS) recently revised the Form I-9 that employers must use to verify the identity and employment authorization for individuals, both citizens and noncitizens, hired for employment in the United States. The form, which is completed by both the employer and employee, must be completed for each person on the payroll, with a few exceptions, and must be retained by the employer either for three years after the date of hire or one year after employment is terminated, whichever is later.
Form I-9 was revised on March 8, 2013 and can be found on the USCIS website. The revisions include the addition of data fields, including the employee’s foreign passport information, if any, telephone and email addresses, improved instructions, and a revision to the form’s layout. Older I-9 forms will be accepted until May 7, 2013 without penalty. After May 7, 2013, only the March 8, 2013 I-9 form will be accepted. After May 7, 2013, employers who fail to use the revised I-9 form may be subject to “all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a, as enforced by U.S. Immigration and Customs Enforcement (ICE) and [the Department of Justice].” Introduction of the Revised Employment Eligibility Verification Form, 78 Fed. Reg. 15030 (Mar. 8, 2013).
Employers do not need to complete the revised Form I-9 for current employees if a properly completed Form I-9 is already on file, unless re-verification applies. Id. at 15031.
Failure to complete, retain and/or make available for inspection Form I-9, as required by law, may result in civil monetary penalties ranging from $110 to $1,100 per violation. In determining the amount of the penalty, consideration is given to:
(1) the size of the business;
(2) good faith on behalf of the employer;
(3) the seriousness of the violation;
(4) whether or not the individual was an unauthorized alien; and
(5) the history of previous violations by the employer.
We recommend that employers maintain the completed I-9 forms separate from the employees’ personnel files, so that the forms are readily accessible in case of an audit.
If you have any questions about the revised I-9 form, please contact any of the attorneys on our Labor & Employment Practice Team.