Employers Should Begin Using Revised And Expanded Form I-9

by Franczek Radelet P.C.

Employers must complete United States Citizenship and Immigration Services’ (USCIS) Form I-9, which requires all newly-hired employees to verify their identity and authorization to work in the United States. As we reported last fall, the most recent USCIS form contained the ominous notation “OMB No. 1615-0047; Expires 8/31/12” in the top right corner. While the USCIS announced that this version of the form was valid at the time, USCIS was still seeking public comment on a revised From I-9. On Friday, March 8, 2013, the USCIS published the long-awaited final version of this form in the Federal Register and posted the form on its website. 

Employers should immediately begin using the new form, which bears the notation “OMB No. 1615-0047; Expires 3/31/2016” in the top right corner of the form. The lower left corner also includes the identification “Form I-9 03/08/13 N”. The USCIS has provided a grace period through May 7, 2013, during which employers may continue to use older versions of the forms dated in 2009. We strongly recommend, however, that employers switch to the new form as soon as possible. Employers who do not begin using this latest version of Form I-9 by May 7, 2013 may be subject to penalties for failure to do so.

The new Form I-9 is now two pages long and contains additional explanatory language and additional fields that USCIS hopes will reduce errors when employers and employees complete the form. Unlike previous versions, the first page of the new Form I-9 includes only the employee-completed Section 1, entitled “Employee Information and Attestation.” The revised Section 1 includes extra fields for foreign passport information or I-94 admission number (when applicable) and can capture an employee’s telephone and email address.

Form I-9 also includes a new second page that contains the employer-completed Section 2 (Employer or Authorized Representative Review and Verification) and Section 3 (Reverification and Rehires). USCIS has expanded this page to provide more space and clearer direction for employers, particularly for List A documentation.

Notwithstanding any of the revisions to the form itself, new employees must still complete the Form I-9 no later than their first day of employment and present proof of identity and proof of employment eligibility. Within three business days, employers must review any supporting documents and complete section 2 of Form I-9. Of course, employers should carefully follow Form I-9’s instructions to avoid requesting or collecting additional documentation beyond what is required, and should never require U.S. citizens or other lawful permanent resident employees to “reverify” their employment eligibility. Doing so could subject the employer to significant liability under the antidiscrimination provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. Please contact us with any questions about the new Form I-9 and whenever you have verification and employment eligibility questions, whether with new hires or existing employees. 

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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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