Employers Must Now Use Revised Form I-9 – Are You In Compliance?

Immigration and Customs Enforcement (“ICE”) activity has increased in the Trump Administration,[1] and employer audits are expected to increase.  Employer compliance with the new I-9 requirements, which went into force on January 21, 2017, is now more important than ever.

We have previously analyzed the notable changes in the new I-9 form, including the advantages the new I-9 form presents to employers. See previous article.[2]   Using the “Smart I-9” interactive pdf presents additional advantages for employers, including the pdf form’s built-in error checking and prompts.  Ultimately, some paperwork will be required, as the form—once completed—must be printed and signed. However, the new I-9 forms should be easier for both employers and employees. Notably, as of August 10, 2016, Colorado employers are no longer required to complete separate I-9’s for the State of Colorado, further streamlining the new I-9 process.[3]

To comply with requirements of the new I-9, employers should pay special attention to their internal verification requirements.  The employer representative verifying employment eligibility must be in the physical presence of the person being verified, and must see the actual documents presented by the employee.  Remote review is not sufficient.

Additionally, employers must continue to retain I-9 forms for each employee for three years after the date of hire or one year after termination of employment, whichever is later.  Completed forms must be available for inspection by Department of Labor, Department of Justice Immigration and Employee Rights Section, and the Department of Homeland Security.

For employers choosing to store I-9 forms electronically, U.S. Citizenship and Immigration Services (“USCIS”) recommends some best practices.  Notably, electronic storage systems must contain a detailed index so that employers can quickly access a specific form for inspection.  The employer should also ensure that the information is scanned in legibly, and should ensure controls are in place to prevent unauthorized access or alteration the electronic I-9 files.[4]

The new I-9 form, while easier to use, does not limit an employer’s exposure to fines associated with employing illegal workers or engaging in illegal discriminatory hiring practices.  To further assist employers, the USCIS’s “E-verify” tool allows employers to confirm employment eligibility.[5]  Employers who choose to use E-Verify must not discriminate in doing so. Thus, an employer who decides to use E-Verify should verify all new employees, not just a select few.

For additional guidance on completing the new Form I-9, USCIS has put out an updated Handbook for Employers, available online.[6] Employers are also encouraged to consult with an employment attorney with any questions concerning I-9 compliance.

[1] See Nicholas Kulish, Caitlin Dickerson, and Rob Nixon, Immigration Agents Dicsovery New Freedom to Deport Under Trump, NYTimes.com (2/25/2017), https://www.nytimes.com/2017/02/25/us/ice-immigrant-deportations-trump.html.

[2] The Rocky Mountain Employer, “Employment Eligibility Verification Update: Employers Have Until January 22, 2017 to Implement Revised Form I-9,” December 1, 2016 (http://www.rockymountainemployersblog.com/blog/2016/12/1/employment-eligibility-verification-update-employers-have-until-january-22-2017-to-implement-revised-form-i-9).

[3] See The Rocky Mountain Employer, “Colorado Employers Must Accommodate Pregnancy, but May Not Have to Duplicate I-9 Reporting Efforts,” June 2, 2016(http://www.rockymountainemployersblog.com/blog/2016/6/2/colorado-employers-must-accommodate-pregnancy-but-may-not-have-to-duplicate-i-9-reporting-efforts).

[4] U.S. Citizenship and Immigration Services, I-9 Central, Storing Form I-9 (https://www.uscis.gov/i-9-central/retain-store-form-i-9/storing-form-i-9).

[5] https://www.uscis.gov/e-verify

[6] U.S. Citizenship and Immigration Services, Handbook for Employers: Guidance for Completing Form I-9 (Employment Eligibility Verification Form), January 22, 2017 (file:///C:/Users/Contract%20Attorney/Downloads/m-274.pdf).

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