Employers Must Start Using New Form I-9 To Verify Employment Eligibility

By January 22, 2017, U.S. employers must start using the new Form I-9 Employment Eligibility Verification issued November 14, 2016 by the United States Citizenship and Immigration Service (USCIS). The prior 03/08/13 edition expired on March 31, 2016, but may still be used until January 22, 2017, when the 11/14/16 edition becomes mandatory. The “Edition Date” is located in the lower left corner of the form. Of course, nothing prevents employers from using the new edition sooner.

Congress established the original Form I-9 requirements in 1986 by passing the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring U.S. citizens or noncitizens for employment in the U.S. without first verifying their identity and employment authorization on Form I-9. On August 25, 2016, the U.S. Office of Management and Budget (OMB) approved a new Form I-9 to be issued by USCIS by November 22, 2016. The USCIS issued it a week early on November 14, 2016.

Failure to use the proper Form I-9 or to fill it out properly can lead to significant fines, yet employers often fill out the three-page form incorrectly. As a result, the USCIS keeps expanding the form’s instructions and guidance. The separate instructions are now fifteen pages long and there is an additional 65-page “Handbook for Employers” to provide “Guidance for Completing Form I-9 (Employment Eligibility Verification Form)” available from USCIS.

The new 11/14/16 edition has significant features designed “to reduce errors and enhance form completion using a computer.” Computer users have access to drop down lists and calendars, detailed on-screen instructions, and a button to review the information entered or clear the form to start over. The computer-based version also highlights errors in the form’s fields to help the user fill it out more quickly and accurately. When the employer prints the completed form, a Quick Response (QR) code is generated that can be read by most QR readers to help keep track of the form.

Although more computer friendly, the new Form I-9 is still not a true electronic form. After completion, employers must still print and retain a copy for possible inspection by the government. The Department of Homeland Security, Department of Labor, or Department of Justice may initiate an I-9 audit on their own, or in response to the complaint of a disgruntled former employee. Employers must store a copy for three years after the employee’s date of hire or for one year after the employee is terminated, whichever is later. To avoid any surprises, employers should periodically audit their own Form I-9s or retain an experienced employment or immigration professional to conduct an audit.

Douglas Bracken is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization. He is a partner at Scheef & Stone, a full-service commercial law firm in Texas that represents businesses of all sizes throughout the United States and, through its Mackrell International network, around the world. Learn more about Doug here.