• Ensuring Your Workforce Is Legal: New Look and New Procedures for Form I-9
  • June 12, 2013 | Author: Aimee Clark Todd
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • The I-9 form has a new look and employers must adapt their training and procedures accordingly. All employers are required to complete and retain I-9 forms for all new hires as evidence of the verification of the person’s identity and work authorization. This deceptively simple form has landed many employers in hot water as employers can incur substantial fines even for technical violations involving a completely legal workforce. U.S. Citizenship and Immigration Services (USCIS) has now revamped the form in an attempt to address many common problems.

    USCIS published the new form on March 8, 2013, which employers were allowed to use immediately and were required to use starting May 7, 2013.

    • The I-9 form is available at www.uscis.gov in the Forms section, together with the form instructions and links to the Handbook for Employers and other related items.
    • The new form instructions are much more detailed than the prior version.
    • Employers must provide the full, unaltered set of instructions (both the employee and employer portions) to employees when completing the I-9.

    Section 1 - Items of Note

    • Section 1 of the I-9, the employee’s information, now takes up the entire first page. The separation of data for the employee to complete on page 1 and for the employer to complete on page 2 is meant to ensure that each party fully completes and signs their respective section.
    • Section 1 requests the employee’s e-mail address and telephone number, although the instructions explain these fields are optional. The employee’s Social Security Number is also optional, unless the employer is enrolled in E-Verify.
    • In the employee’s attestation in Section 1, when an employee indicates he or she is an alien authorized to work for a temporary period of time, the form has been updated to request an “Alien Registration Number/USCIS Number” or a “Form I-94 Admission Number.” This updated language is more consistent with current documentation issued to foreign nationals authorized to work in the U.S. for a limited period of time. However, at the same time USCIS was developing the revised I-9, U.S. Customs and Border Protection (CBP) was eliminating the I-94 card issued to many foreign nationals entering the U.S. As a result, an employee who was most recently admitted by CBP but did not receive an I-94 card may need to follow procedures on the CBP website to obtain his or her I-94 Admission Number electronically in order to complete the I-9.
    • An employee who provides an I-94 Admission Number that was provided by CBP must also provide his or her passport information. If the employee entered without a foreign passport or obtained an admission number from USCIS, he or she should enter “N/A” in the passport fields.

    Section 2 - Items of Note

    • In Section 2, List A has been expanded to allow sufficient fields to fully complete all document information when an employee must present multiple documents. Multiple documents are not always required, so employers must review the instructions and Handbook carefully to ensure they are recording the correct document information.
    • The List of Acceptable Documents for List C states that restricted Social Security cards with any of the following language are not acceptable for I-9 purposes, reflecting an update to include all versions of the restriction that employers may encounter: “not valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”
    • The employer certification in Section 2, which is signed under the penalty of perjury, has been modified to make it clear that the employer is making three attestations:

    1. that the employer representative has examined the documents presented by the employee (the Handbook further clarifies that the employer representative must be physically present with the employee);
    2. that the documents presented appear to be genuine and to relate to the employee; and
    3. that the employee is authorized to work in the U.S.

    • Section 2 of the I-9 now places on a separate line the blank for the employer to enter the employee’s first date of employment.

    Section 3 - Items of Note

    • Section 3 is used when an employee’s work authorization was temporary and must be re-verified. All re-verifications completed on or after May 7, 2013, must be completed on this new version of the I-9 and cannot be completed on Section 3 of a prior version of the form.
    • Section 3 is also used for certain employees who are rehired. If the employee meets the criteria to use Section 3 as a rehire rather than completing an entirely new form, Section 3 of now-outdated versions of the I-9 may still be used (unlike the rule for re-verifications noted above).
    • In the new Handbook for Employers, USCIS “recommends” that employers who learn of an existing employee’s name change record that change in the space provided in Section 3. (By contrast, in the case of a rehire or reverification, employers “must” record the employee’s name change in Section 3.) USCIS also states that employers may wish to request and retain documentation of the name change with the I-9. However, requesting such documentation could lead to a claim of discrimination or document abuse. For this reason, employers should review their options, determine a best practice, and adopt a policy that is applied consistently throughout the company to address name changes.
    • If an employee presents documentation of a new identity, rather than just a name change, the Handbook provides recommendations as a best practice. Employers should review the recommendations and adopt a policy to address documentation of a new identity that meets employment authorization requirements, contractual obligations, other company policies and other legal requirements. This policy must be applied consistently throughout the company.

    The government’s focus on an employer’s obligation to ensure the employment eligibility of its workforce continues to be a major issue. Employers must equip themselves with the knowledge and training necessary to succeed in the event of a government audit or investigation. To ensure compliance with current employment verification requirements, employers should:

    • Update written I-9 policies (and E-Verify policies, if applicable) and conduct regular review to ensure policies are followed.
    • Provide regular training for company representatives responsible for I-9/E-Verify completion, particularly with regard to the new I-9 form and any state-specific requirements. (See our multi-jurisdiction verification survey at http://www.troutmansanders.com/immigration.)
    • Conduct regular, independent audits of I-9/E-Verify records.
    • Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, or firing.

    Taking the steps outlined above will ensure you are on your way to a comprehensive level of compliance.