While the President’s recent executive order on immigration has received widespread attention, another immigration law that affects employers across the United States quietly took effect last week. Last fall, the United States Citizenship and Immigration Services (“USCIS”) issued a new version of the Form I-9, dated November 14, 2016. On January 22, 2017, the prior version of Form I-9, dated March 8, 2013, became obsolete and no longer may be used by employers. The core Form I-9 requirements are unchanged, but the new version includes some additional instructions and formatting. Employers must use this form exclusively for all new hires and recertifications on or after January 22, 2017, or face increased fines and penalties.
As an added feature, the new Form I-9 has a fillable PDF option that enables users to complete the form electronically. The PDF provides guidance for completion, restricts via drop down menus the information that can be inputted, and notifies the user of certain errors prior to printing, all aimed at reducing user errors. The new form is not purely “electronic” though—it still must be printed and signed in hard copy. Users who do not wish or are unable to use the interactive PDF features still have the option of printing the form and completing it by hand.
The substantive changes to the Form I-9 are as follows:
- The Instructions pages were increased from six pages to fifteen in order to provide additional guidance to users;
- The following changes were made to Section 1, which is completed by the employee and reviewed by the employer:
- The employee is required to enter “N/A” in fields rather than simply leaving them blank, as was the case previously.
- Foreign nationals authorized to work in the U.S. now are permitted to provide an alien registration number, Form I-94 admission number, or foreign passport number, in lieu of providing both the I-94 number and foreign passport information, as was required on the old Form I-9.
- The new form increases the space for preparers and/or translators to sign and date. It also requires employees to affirmatively answer that they did not use a preparer or translator.
- The following changes were made to Section 2, which is completed by the employer:
- On page 2, the employer is required to enter the number corresponding to the employee’s attestation of citizenship or immigration status from page
- The online form has dropdown menus for acceptable documents, but employers should note that the dropdown menus do not include all documents the employer is permitted to accept. This is important because employers face liability for refusing to accept documents that USCIS has found are acceptable. In conjunction with reviewing documents, employers must continue to review the employee’s documents in person. Even though the new “smart” I-9 can be completed online, documents may not be reviewed remotely via a webcam or similar technology.
- The new form also has space for the employer to make notes or record additional information. Employers should be cautious about entering non-essential information on this form, as anything written on the form can be reviewed during an audit or other governmental investigation. Employers also should remember that Form I-9s, like other employment eligibility tools, should be used consistently for all employee - so employers should adopt consistent policies regarding what information, if any, is recorded in this space.
- The reverification requirements in Section 3 were not changed. However, reverifications performed after January 22, 2017 must use the new form.
Employers do not need to use the new Form I-9 on existing employees—they should simply start using the form for employees hired or who require recertification on or after January 22, 2017. Proper compliance requires the employer to use the version of the form in effect on the date the employee was hired or recertified. If the wrong form was used, the employer should redo the employee’s Form I-9 using the correct form. USCIS’s issuance of the new Form I-9 did not affect applicable retention requirements, which remain the same.
It is important for employers to ensure they strictly comply with the Form I-9 requirements—including by using the correct version of the form. Last August, fines for Form I-9 paperwork violations, which include using an outdated version of the Form I-9, increased significantly. Employers now can be fined a minimum of $216 and a maximum of $2,156 for each and every Form I-9 violation occurring after November 2, 2015.