Labor: How to conquer your fear of the new I-9 form

USCIS finally settles on the latest edition of Form I-9

After a flurry of revisions over the past several years, the U.S. Citizenship and Immigration Services (USCIS) settled in March on the latest edition of Form I-9, Employment Eligibility Verification. This ubiquitous one-page form, familiar to every human resource professional and in-house counsel, has now grown to two pages, not including the six pages of instructions. 

Employers must use the latest version of the form bearing an edition date of March 8, 2013, and those who fail to do so may be subject to penalties enforced by Immigration and Customs Enforcement (ICE).

Birth of the form

Form I-9 was created as a result of the Immigration Reform and Control Act of 1986 (IRCA). Congress intended to stem the flow of illegal immigration into the U.S. and began requiring employers to fill out the I-9 form for all new hires. IRCA sought to diminish the lure of American jobs for foreign workers by penalizing employers who knowingly hire workers who are unauthorized aliens—that is, non‑U.S. citizens who are not authorized to accept employment in this country. It is unlawful for employers to hire any individual without complying with the IRCA verification of work status and record-keeping requirements.

What are the requirements?

Under IRCA’s I‑9 employment eligibility verification requirements, an employer must 1) not knowingly hire, or continue to employ, any person not authorized to work in the United States; and must 2) verify the identity and employment eligibility of every new employee, whether the person is a U.S. citizen or foreign national, hired on or after Nov. 6, 1986. On the I‑9 form, the employer must verify the employee’s identity and authorization to work.

Both the revised form and the “Handbook for Employers, Guidance for Completing Form I-9” (M-274) are available online. USCIS also has a schedule of useful free webinars about Form I-9 for employers.  

Filling out the form: employee responsibilities

The employee must fill out the first page of the form no later than the first day of employment and with the revised form, now has the option of providing an email address and telephone number. Apparently, this may assist the Department of Homeland Security (DHS) in contacting an employee regarding his or her employment verification. If an employee chooses not to complete these optional fields, he or she should write “N/A”.

Also, the U.S. Social Security Number is optional unless the employer is signed up for E-Verify, in which case the number must be provided. There is also a new field requesting passport information for employees who are authorized to work in the U.S. only temporarily.     

Filling out the form: rules for employers

The employer must complete page 2 of the I‑9 form within three business days of the employee’s first day of employment. In addition, the employer must attest, under penalty of perjury, that the employer has examined original documentation presented by the employee, that such documentation “appears on its face to be genuine” and relates to the named individual, and that to the best of the employer’s knowledge the employee is authorized to work in the U.S. In addition, this page now contains a box in which to enter the employee’s last name, first name and middle initial. I recommend that you print the new I-9 form front and back so as to minimize the possibility of the two pages of the form becoming separated.  

How long do I keep the form?

The new form has improved instructions with more definitions, and there are also a few changes on the list of acceptable documents under List A and List C. Employers must have I-9 forms on file for all current employees. Form I-9 must be maintained in the employer’s files for three years after the date you hire an employee or until one year after the date employment terminates, whichever is longer.

To copy or not to copy?

The law allows, but does not require, employers to make copies of the employee’s verification documents to attach to the I‑9 form. However, if you choose to photocopy documents, you must do so for ALL employees, regardless of actual or perceived national origin, immigration or citizenship status, or you may be in violation of anti-discrimination laws. Therefore, an employer should give careful thought in deciding on its I‑9 verification policy based on individual needs and circumstances.

What’s next?

What remains to be seen is how ICE will address violations relating to improper completion of the form in light of the new instructions. With immigration reform looming and the prospect of E-Verify becoming mandatory for all U.S. employers, I suspect that Form I-9 and the accompanying employer handbook will continue to be updated. Stay tuned! 

Contributing Author

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Anton Mertens

Anton Mertens is a partner and immigration lawyer with Burr & Forman LLP (Atlanta). He concentrates on assisting with business immigration matters for investors, managers,...

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