March 22, 2013
The federal government has created a new version of the Employment Eligibility Verification Form I-9. Employers should begin using it immediately.
The U.S. Citizenship and Immigration Service (USCIS) issued a notice in the Federal Register on March 8, 2013, that employers should start using the newest version of the I-9 now. The absolute deadline for using the new form is May 7, 2013.
Features of the New Form
The new form has “Form I-9 03/08/13 N” in the lower left corner of each of its pages. Copies of old forms remain in circulation, so employers should carefully check to make sure they are using the newest version. Penalties for using old forms or incorrectly completing new forms are up to $1,100 for each form. Employers should follow the detailed instructions that are part of the new form, and should check that the employee follows those instructions when completing the employee portion of the form. Neither the employee nor the employer should abbreviate any word on the form, and all dates should be written in the specified format. Seemingly innocuous mistakes may subject the employer to penalties, even where the employee made the mistake and the employer has followed the law in all other respects.
The new I-9 has two functional pages, rather than just one. With its instructions included, the form is nine total pages. The form has new optional fields for the employee’s phone number and email address—the employee may, but is not required to give this information. If an employee chooses not to provide a phone number or email address, the employee should write “N/A” in those fields. The form also includes a field for an employee’s foreign passport information, but this field will only be necessary in limited situations.
Avoiding Penalties
Employers should only use this form for new hires; existing employees do not need to complete the form again. Requiring an employee to fill out a new form unnecessarily could subject the employer to penalties for employment discrimination, which are higher per offense than paperwork penalties and begin at $3,200.
Employers may not insist that an employee present a particular document or combination of documents as part of the I-9 process. Instead, employees may present any legal combination of documents. An employer’s insistence to the contrary may constitute illegal discrimination.
Employers must make the seven pages of instructions available to employees as they fill out I-9s, but need not keep the instructions with the retained forms. Employers are not required to let employees take the instructions with them, and may reuse copies of the instructions.
A Spanish version of the I-9 is available. This version may only be used as a translating aid in the rest of the United States, and should never be completed by any employee outside of Puerto Rico.
Section 1
An employee must complete and sign Section 1 of the I-9 by the first day of employment. An employee may complete Section 1 before starting employment, but never before accepting a job offer. The employer should review Section 1 to ensure that the employee has completed it properly and has signed and dated the form in Section 1. If the employee completed Section 1 improperly, the employer should have the employee fill out a new form in the correct way.
Special rules govern how the employee or employee’s guardian or representative should fill out Section 1 if that employee is a minor or a person with certain disabilities. Employers who hire minors or people with certain disabilities should become familiar with these rules listed in the Handbook for Employers, a link to which is listed at the end of this article. Employers should also refer to the Handbook for the special rules applicable when hiring employees with other uncommon circumstances.
The “Preparer and/or Translator Certification” at the bottom of Section 1 should only be completed if someone aided the employee in completing Section 1. Aid may include writing for the employee or providing translation services to the employee. Even if someone helped the employee fill out Section 1, the employee should still sign and date the form in Section 1.
Section 2
The employer (or an authorized representative, like a staffing agency) must complete Section 2 within three business days of the employee’s first day of work. When completing this section, the employer should remember to write the employee’s name in the appropriate field at the top to prevent any confusion if the two pages become separated. The name should be written to match the way the employee wrote it in Section 1.
When an employer fills out Section 2, it should enter the employee’s first date of employment in the appropriate field. If a temporary staffing agency fills out Section 2, it should enter the first day the employee was placed in a job pool. Recruiters should not fill out this Section; rather, the employer should complete it once the employee has been offered and has accepted the job.
The person completing Section 2 should physically examine the documents presented by the employee to prove identity and employment eligibility. The employer should examine the documents to ensure that they relate to the person presenting them and to see if they appear to be genuine (not fake) documents. Part 8 of the Handbook for Employers includes photos of many of the permitted documents to aid the employer in determining which documents are genuine.
The employer may choose to keep copies of these documents, and if it keeps copies, it should keep the copies with the I-9 and should keep copies for all employees. Merely copying the documents is not a permissible substitute for completing Section 2. The employer must always return the documents to the employee once they have been inspected and copied. The employer should treat all employees consistently in all aspects related to inspection and copying; otherwise the employer could be subject to the aforementioned civil penalties for discrimination.
Employers may accept a document from List A (proving identity and employment eligibility), or one document from List B (proving identity only) and one document from List C (proving employment eligibility only). Employers should become familiar with these lists, found on the last page of the I-9 instructions.
Generally only unexpired, original documents are acceptable. The employee may, however, present a certified copy of a birth certificate. Some documents may appear to be expired on their face, but have been extended en masse for all holders of the document by the federal government. This is common of refugees with temporary protected status.
If an employee presents a receipt rather than a document, the employer should refer to page 4 of the instructions accompanying the Form I-9 and to the Handbook for Employers to understand more about when they are acceptable.
Section 3
Section 3 should only be used by the employer in two circumstances. The first is when an employee returns to work for an employer after a separation, but within three years of the initial hire date. If this occurs, the employer may use Section 3 to update any name change and note the most recent start date. If more than three years have elapsed since the employee initially started work, the employer may not use Section 3 upon rehire, and must use a new Form I-9. To avoid confusion, an employer may always use a new Form I-9 in the case of a rehire, no matter when the employee was originally hired. The employer should always attach the new I-9 to the employee’s previous form. The employer’s policy on using Section 3 versus a new Form I-9 should be applied consistently to avoid any appearance of illegal discrimination.
An employer may also use Section 3 when an employee needs re-verification of employment authorization after it has expired. The rules about whose status can be re-verified and which documents are acceptable for re-verification are complicated. For instance, U.S. citizens and nationals should never be re-verified, even in the case of an expired document. Employers should refer to the rules found on page 5 of the instructions to Form I-9 and in the Handbook for Employers to understand more about when re-verification is appropriate and how it should be accomplished. Like employers rehiring a separated employee, the employer re-verifying employment eligibility may always use a new Form I-9 instead of completing Section 3 and should attach the new I-9 to the employee’s previous I-9.
Retention
Employers must retain the Form I-9 (and attach any copies of documents) for either three years after the employee’s date of hire or one year after the employment has ended, whichever is later. The form may be signed electronically and retained electronically—paper copies are not necessary. Employers do not need to send the Form I-9 to any government agency, but should be prepared to make retained forms available for inspection.
E-Verify
Employers should remember that even though there is a field for the employee’s Social Security Number, the employee is only required to complete that field if the employer uses E-Verify. In Georgia, employers with more than 100 employees are required to use E-Verify to check the employment eligibility of new employees. On July 1, 2013, employers with more than ten employees will be subject to the same requirement. Completing the Form I-9 does not relieve the employer of any E-Verify requirements.
The new Form I-9 can be downloaded in PDF form here: USCIS website – I-9 download.
