New Year, New Forms – Form I-9 Gets a 2020 Update

Foley & Lardner LLP

Foley & Lardner LLPNo job is finished until the paperwork is done, but compliant employers also know that no job is started until the paperwork is complete too. This is especially true with the Form I-9. Last week, U.S. Citizenship and Immigration Services issued a revised Form I-9. Beginning April 30, 2020, employers must use the new form to confirm employees’ authorization to work in the United States; the revised version is currently available and employers can make the switch now.

One key change makes it easier for employers with remote or widespread operations to properly complete the Form I-9. The instructions now clarify that an employer may designate “any person” as an authorized representative to complete the form. The instructions further recognize that many employers prefer the ease of online form completion, and the revised form and its updated instructions help the designated representatives complete the process more smoothly.

Primary compliance requirements have not changed, however. The forms still must be completed within the first three days of an employee’s tenure (except for short-term employees expected to work three days or less, who must complete the form on the first day of employment). Some employers choose to retain photocopies of the authorizing documents—this process is permitted, provided the practice is consistently applied to all employees. For employees who leave and are re-hired within three years, employers can choose to use the same Form I-9 and update the verification using Section 3 of the form. Alternatively, employers can choose to complete a new form. Re-hires are a great opportunity to ensure the form is correctly completed—if any errors or omissions exist, complete a new form.

Some common pitfalls remain in the revised form as well. Employers should ensure that workers properly complete Section 1, including the often-omitted entry of other names used. Maiden names, for example, are required in this section. If any other errors or omissions are noted in Section 1, return the form to the employee for completion or correction (along with an initial beside the notation); the employer should not make any changes directly on the form.

Another thing to note is that many employers with Spanish-speaking work forces offer the Spanish language version of the form to employees, usually in a good faith effort towards compliance. However, the Spanish form is only authorized for use in Puerto Rico. Employers in the 50 states must instead provide a translator to assist in completion—and, of course, properly complete the translator’s certification.

While use of the new form is optional until April 2020, the form is currently available  and is approved for use immediately.

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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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