by

Timothy M. Wheelwright





What Employers Need to Know About The New Form I-9








by Timothy M. Wheelwright


 

Here is my interview with the Salt Lake Chamber of Commerce discussing the new version of Form I-9.



On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS)
announced that effective immediately, all NEW hires by U.S. employers should fill
out the new version of
Form
I-9
, which is identified in the lower, left-hand corner of the form with
the label “Form I-9 03/08/13 N”. 
Starting May 7, 2013, use of the new version of the form is mandatory.>>







U.S. employers need to know the following about the new Form
I-9:


Official Instructions.  The
new Form I-9 now has 9 pages:  Official
Instructions (pages 1-6), the form on which the employee and employer enter
data (pages 7-8), and the List of Acceptable Documents (page 9).  The official instructions have been expanded
from 2 to 6 pages.  Anyone who is
involved with a company’s I-9 process should carefully read these instructions
before beginning to use the new form.  These
instructions and the List of Acceptable Documents must be made available to the
employee while he or she is completing the form.>>

Other Resources.  Anyone
involved with a company’s I-9 process should also have access to the updated
Handbook for Employers:  Guidance for Completing Form I-9 (Employment
Verification Form)
and USCIS’s online resource for employers called I-9 Central.  These and the official instructions are
excellent resources that should be consulted often to ensure compliance.>>




Only for New Hires.  Do not
require current employees for whom there is already a properly completed
Form I-9 on file to complete the new Form I-9. 
Doing so could violate the antidiscrimination laws.>>






Section 1.  This is found
on page 7 and is completed by the employee:




  • Although the employee completes this section, the employer
    is responsible for ensuring that it is completed properly and timely.



  • It must be completed and signed by the employee no later
    than the first day of employment, but not before accepting a job offer.



  • If the employee has 2 last names, enter both names under Last Name.



  • If the employee has not used any other names, enter “N/A”
    under Other Names Used.



  • No P.O. Box should be entered under Address and only border
    commuters from Canada or Mexico may enter an international address.  (We should not have border commuters in
    Utah, Georgia, or North Carolina.)



  • The birthdate should be entered in the format MM/DD/YYYY.



  • The employee is not required to provide his or her Social
    Security number unless the employer participates in E-Verify, in which case providing
    it is mandatory.



  • The form now requests the employee’s e-mail address and
    telephone number, however, the employee is not required to provide this
    information.



  • If the employee checks the box next to A noncitizen national of the United States, consider directing
    their attention to page 2 of the instructions, which identifies who may check
    this box.



  • If the employee checks the box next to An alien authorized to work until, he or she must enter either
    their Alien Registration Number/USCIS Number or their Form I-94
    Admission Number.  If they obtained their
    admission number in connection with their arrival in the United States, they
    must also insert their foreign passport number and country of issuance.  If they obtained their admission number some
    other way, they may insert “N/A” in these spaces.



  • This is new and very important:  If the employee checks the box next to An alien authorized to work until and inserts an expiration date,
    the employer must track that expiration date and re-verify employment
    authorization on or before the date provided. 
    This is in addition to its duty to track the expiration date of any List
    A document (other than a U.S. passport or Permanent Resident Card).  If both Sections 1 and 2 indicate expiration
    dates triggering the reverification requirement, the employer should reverify
    by the earlier date.



  • There are special instructions on page 2 about the circumstances under which the Preparer and/or Translator Certification must be
    completed.  I generally recommend that the
    employer should not fill out any portion of Section 1.  If it does, however, the employer’s
    representative must complete this preparer certification.



  • There are special instructions on page 2 for how Section 1
    should be prepared for minors and certain employees with disabilities.>>



Section 2.  This is found
on page 8 and is completed by the employer:




  • Section 2 must be completed within 3 business days of
    the employee’s first date of employment, unless the employee is hired to work
    less than 3 days, in which case this section must be completed on the first day
    of employment.



  • On page 3 you will find a helpful 7-step process the employer should
    follow to complete this section.  The
    instructions emphasize that the examiner of the documents and the employee must
    be physically present during the examination of the employee’s original
    documents and that the person who examines the documents must be the same
    person who signs Section 2.



  • Do not forget to insert the employee’s full name near the
    top of the page.  This is a new field
    that I suspect many employers are going to overlook.



  • This section has been significantly improved to clearly
    identify the information from the original documents reviewed that must be
    recorded on the form, including Document
    Title
    , Issuing Authority, Document Number, and Expiration Date (if any).



  • There is now a list of the Social Security cards that may not
    be accepted under List C of the List of
    Acceptable Documents
    (page 9).



  • Under Certification, do not forget to enter the employee’s
    first day of employment.  (For temporary
    staffing agencies, insert the first day the employee was placed in a job pool
    and recruiters and recruiters for a fee may leave this space blank.)



  • On pages 3-4 you will find useful and detailed instructions
    about photocopying the documents presented, unexpired documents, and receipts,
    including what receipts an employer may accept and how to properly annotate the
    I-9 form when an employee presents an acceptable receipt. 
    Review these important instructions carefully.>>



Section 3.  This is also
found on page 8 and is to be completed by the employer when reverifying
that an employee is authorized to work either because their List A or C
document (other than a U.S. passport or Permanent Resident Card) has expired or
the employee has been rehired within 3 years of the date the Form I-9 was
originally completed:




  • On pages 3-4 you will find useful and detailed instructions
    about reverifications and rehires.



  • An important feature of the new Form I-9 is the instructions
    that employers must now reverify employment authorization when an employee
    provides an employment authorization expiration date in Section 1 and that if
    both Sections 1 and 2 indicate expiration dates triggering the reverification
    requirement, the employer should reverify by the earlier date.



  • Although the instructions say that when reverifying
    employers have the option of completing Section 3 of a new Form I-9 or Section
    3 of the previously completed Form I-9, after May 7, 2013, when the new Form
    I-9 becomes mandatory, it appears to me the employer’s only option would be to
    complete Section 3 of the new Form I-9. 
    The instructions state that the employer may attach just the page
    containing Section 3 (page 8), with the employee’s name entered at the top of
    the page, to the employee’s original Form I-9. 
    Do not discard the previously-completed Form I-9.>>



Retention Requirements.  The
employer is required to retain only pages 7-8, which are the pages of the form
on which the employee and employer enter data. 
If copies of the documentation presented by the employee are made, those
copies must also be kept with the forms. 
The employer must have a properly completed Form I-9 for every current
employee who was hired after November 6, 1986. 
Once that individual’s employment ends, the employer must retain the
form and, if applicable, copies of the supporting documents for 3 years after
the date of hire or 1 year after the date of termination, whichever is
later.  I strongly recommend that
employers implement a method for tracking these dates and that it dispose of
these records as soon as permitted.>>







Photocopies.  Making
photocopies of the supporting documents is no substitute for the employer
properly completing Section 2 and it certainly cannot take the place of
completing Form I-9.  The single most important protection a company can have against a claim that it has knowingly hired an undocumented worker is to have a properly completed Form I-9 for each one of its employees hired after November 6, 1986.

E-Verify.  Similarly,
even if a company uses E-Verify, it must still have a properly completed Form
I-9 for its current employees.>>







Potential Penalties.  A
company who fails to use the new version of Form I-9, to ensure that its
employee properly completes Section 1, or to properly complete Sections 2 or 3
of the new Form I-9 is subject to civil fines ranging from $110 to $1100 per
form.  The United States government is
aggressively checking compliance through worksite audits conducted by field agents
and forensic auditors.  I strongly
encourage all employers to
internally
audit and assess their compliance utilizing the services of an attorney who has
experience conducting such audits
.>>

Do not delay your organization’s implementation of the new
Form I-9.




**Note**:  The foregoing is not intended to be legal advice, nor should it be construed as such.  Each employer should consult with competent legal counsel about its particular circumstances and how best to implement the new Form I-9.  >>





Tim Wheelwright is a partner in the Salt Lake City office of Kuck Immigration
Partners, a national immigration law firm. He handles both routine and complex
immigration matters for companies and individuals. Follow him on Twitter at
@TimWheelwright or reach him at
twheelwright@immigration.net or
(801) 989-5702.







About The Author





Timothy M. Wheelwright, a shareholder with the Salt Lake City law firm of Durham Jones & Pinegar and chair of the firm's Immigration Law Practice Group, concentrates his practice in worksite enforcement, employment-based and other complex immigration and nationality matters, immigrant investor matters, and international and domestic adoptions. He is a graduate of Brigham Young University (B.A., cum laude) and the University of Utah College of Law (J.D.) and is listed in The Best Lawyers in America, Mountain States Super Lawyers, "Utah Legal Elite (Immigration)", and the International Who’s Who of Corporate Immigration Lawyers.






The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.