Avoid ICE Penalties! Use The Correct Form I-9! New version Of Form I-9 In effect As Of May 2, 2020

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This is a reminder that employers are required to use the new version of the Form I-9 as of May 1,2020.  As noted in our prior post, USCIS announced the publication of the new version of the Form I-9 on January 31, 2020, with a 60-day grace period for its mandatory use.  Accordingly, the new version of the went into effect on May 1, 2020 and all prior versions of Form I-9 are no longer be valid for use and are obsolete.

It is important that employers do not lose track of the requirement to use the new edition of the Form I-9 among the myriad of DHS announcements regarding changes or relaxation of requirements relevant to completing the Form I-9 and verifying identity and employment eligibility due to the COVID-19 pandemic.

The new edition of the form is available in fillable PDF format, print format and in Spanish on USCIS’ I-9 Central website.  (Note that the Spanish form may only be executed by employers in Puerto Rico; Employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the Form as a translation guide only but must complete the English version of the Form.)  The associated instructions and the Form I-9 Supplement, Preparer and/or Translator Certification, have both also been updated.

Employers can confirm that they are using the current and correct edition of the form by checking the form date in the lower left corner, which should read 10/21/2019, and the expiration date in the upper right corner, which should read 10/31/2022.

In addition, on April 27, 2020, USCIS released a revised M-274, Handbook for Employers: Guidance for Completing Form I-9, with expanded information on properly completing Form I-9, Employment Eligibility Verification.  The M-274 is an essential compendium of I-9 compliance information and instruction, and is designed to supplement employ­ers’ understanding and knowledge of the various employment eligibility verification obligations.  Please refer to my upcoming post on this topic for additional information.

As a reminder, as noted in my prior post on this topic, on March 20, 20 DHS Announced Flexibility in Requirements Related to Form I-9 Compliance, allowing employers to inspect Section 2 documents remotely (e.g., over video link, fax or email, etc.) for purposes of completing Section 2.   Employers must continue to adhere to the three business day requirement and also conduct a physical inspection of the original documents once normal operations resume.  This flexibility policy is currently in effect until May 19, 2020, at a minimum (and may be extended), or within three business days after the termination of the National Emergency, whichever comes first.

Also, on May, 1, 2020, DHS announced Temporary flexibility for List B documents for Form I-9, Employment Eligibility Verification and in E-Verify, allowing identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, to be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.  See my prior post on this topic for additional information.

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  Beginning May 1, 2020, employers must use the new edition of the Form for all new hires and for re-verifying current employees with expiring employment authorization documentation.  Employers should not complete new Forms for existing employees who do not require re-verification.

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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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