Employment Eligibility Verification Update: Employers Have Until January 22, 2017 to Implement Revised Form I-9

Employers must begin using the newly revised Form I-9 (the “New Form I-9”) by January 22, 2017.  The United States Citizenship and Immigration Services (USCIS) recently released the New Form I-9 that replaces the current version, which was released in March 2013 and expired on March 31, 2016 (the “March 2013 Form I-9”).[1]  Employers may use either the March 2013 Form I-9 or the New Form I-9 until January 21, 2017.[2]  This article analyzes the changes made to the March 2013 Form I-9 and the practical impact on employers.

Changes to the March 2013 Form I-9

Employers must maintain a valid Form I-9 for every employee on their payroll in order to establish each employee’s identity and authorization to work in the United States.[3]  The New Form I-9 makes significant changes to the March 2013 Form I-9, and the changes are designed to address points of confusion for both employers and employees.[4]  Changes in the New Form I-9 include:

(1)               Inclusion of separate instructions with more detailed information to help the preparer ensure accuracy and avoid fines;

(2)               The ability to access and complete an electronic version of the New Form I-9, with updated features including embedded instructions to answer questions, an error checking mechanism that ensures information is entered in correctly, and dropdown lists and calendars for easily entering in information and dates;

(3)               Inclusion of a designated space for employers to add additional information or highlight uncommon situations, as opposed to attaching an explanation memo; and

(4)               Removal of the requirement that authorized immigrants provide both their Form I-94 number and foreign passport information.[5] 

The New Form I-9 can be accessed through the following link: https://www.uscis.gov/i-9.  While many commentators refer to the New Form I-9 as a “Smart” or “Electronic” form, employers must still print off the form for original signatures and store the hard copy.[6]   

Practical Impact for Employers

The New Form I-9 will likely positively impact employers because it provides better guidance to ensure accuracy, which is critical given the USCIS’ announcement in August 2016 that it will be increasing fines for Form I-9 violations.[7]  Many employers will likely find that the New Form I-9 is easier to complete, which should further expedite the process of completing the form, however, employers should still follow their company policies regarding Form I-9 compliance and auditing procedures.  While employers have until January 22, 2017 to begin using the New Form I-9, employers should consider reviewing the new form now to ensure familiarity before the January 22, 2017 implementation deadline.

[1] Roy Maurer, Current Form I-9 Valid Until Jan. 21, 2017, Society for Human Resource Management (Nov. 14, 2016) (available at: https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/current-form-i9-valid-jan-21-2017.aspx) (last accessed Dec. 1, 2016). 

[2] Id.

[3] 8 C.F.R. § 274a.2.

[4] See Maurer, supra note 1.

[5] Id.

[6] Greg L. Berk and Kevin Houng, USCIS Issues Revised “Smart” Form I-9, The National Law Review (Nov. 28, 2016) (available at: http://www.natlawreview.com/article/uscis-issues-revised-smart-form-i-9) (last accessed Dec. 1, 2016). 

[7] Michelle White, Fines for I-9 and Other Immigration Violations Have Increased as of August 1, 2016, Littler (Aug. 12, 2016) (available at: https://www.littler.com/publication-press/publication/fines-i-9-and-other-immigration-violations-have-increased-august-1) (last accessed Dec. 1, 2016).  Fines for Form I-9 violations nearly doubled from $110-$1,100 per violation to $216-$2,156 per violation.  

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