Evaluating the Updated Form I-9

April, 2013


Recently, we sent out an alert that the U.S Citizenship and Immigration Services (USCIS) published their updated Form I-9. Now that we have had time to look it over, following is a summary of the most notable changes between the old form and this new form.

Here is the new version of the Form I-9 if you have not seen and saved it yet.

Overall changes:

  • This form and instructions is 9 pages in length vs. 5 in the previous version
  • Much more detailed instructions for both employees and employers, which spell out many of the requirements that employers were supposed to follow but that were not documented on the previous form or instructions
  • The format of the actual form is easier to follow and complete (How many times have we had employees sign in the wrong place on the previous form? There should be no question where the employee signs the new form.)
  • A handful of new requirements in the instructions and on the form

As mentioned above, the new instructions clarify many of the requirements for completing the Form I-9 that were in place with the previous version but that were not clearly spelled out on the form or the accompanying instructions.

  • The employer must provide the employee not only the form and list of acceptable documents, but the instructions specifically state the employee must be given the list of acceptable documents and all instructions. This was also stated on the previous version, but with the better detailed instructions, employers should make sure to follow this requirement now.
  • The form must be completed within three business days of the employee’s first day of employment. The new instructions provide an example. If an employee is hired on a Monday then the Form I-9 must be completed by Thursday – 3 business days later.
  • Employers must "physically examine” the documents presented by the employee. Although this requirement has not changed, the previous language was not as clear only saying that "Employers must complete Section 2 by examining evidence of identity and employment authorization.” It also says the examiner of the documents and the employee must both be physically present during the examination of the employee’s documents.
  • The new form provides much more detail on the situations in which an employer may accept a receipt if an employee is unable to present a required document. The new directions describe the three types of receipts that employers may accept, how the employer must record the receipt, and the deadline for producing the actual document.
  • The new form’s instructions also provide employers more detailed direction on completing the Form I-9 in the situations where an employee’s documents expire and when the employer has a rehire.
  • Although the List A, B, C documents have not changed, the instructions on what the employee must submit for some of the specific documents is stated more clearly (for example, the documents needed from a nonimmigrant alien authorized to work for a specific employer).
  • List C social security cards. The new form clarifies what cannot be accepted, which is any SS card with the following restrictions stated on the front of the card:
    • Not valid for employment
    • Valid for work only with INS Authorization
    • Valid for work only with DHS Authorization
  • The directions specifically state that employers may maintain electronic copies of the I-9 forms and supporting documentation (if photocopied) according to DHS regulations at 8 CFR 274a.2.

New instructions and requirements on the Form I-9:

  • The instructions state Section 1 should never be completed before an employee has been made a job offer.
  • The instructions direct the employee and employer that Section 1 of the form must be completed "no later than the first day of employment.”
  • The I-9 now asks the employee to supply email address and telephone number information (voluntary).
  • There is a new section in the instructions on minors and certain other employees with disabilities. For individuals in these groups, there are special procedures to follow for establishing identity, if the employee doesn’t have any of the documentation listed as acceptable on the form.

Lastly, you may have seen that there is now a Spanish version of the I-9. Great! Or not. The Spanish version may only be used in Puerto Rico. Other employers can provide employees with the Spanish I-9 for reference, but the employee must still complete the English version. (Yeah, we don’t get it either.)

As a reminder, although employers have until May 7, 2013 to fully implement using the new form, we recommend employers begin using it immediately. As of May 7, 2013, employers who continue to use any previous version of the I-9 form will be out of compliance and subject to applicable penalties.

The USCIS has also published a new "Handbook for Employers.” You can access that handbook to get more detailed information about the new I-9 form and the regulations.

If you have any questions about the new I-9 form, please contact us.

 

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