In case you haven’t watched the news lately, the immigration debate is a big deal these days. Companies must navigate the balance between ensuring all their employees are authorized to work in the U.S. while refraining from any discriminatory practices on the basis of national origin or citizenship. Employers are now required to have a completed Form I-9 (Employment Eligibility Verification) for every new employee hired after November 6, 1986.
The U.S. Citizenship and Immigration Services (USCIS) recently released a couple of updates to Form I-9, with the most recent dated 7/17/17. Employers can use Form I-9 version 11/14/16 N through September 17, 2017 and starting September 18, 2017, must use version 7/17/17 N.
These updates don’t include any changes in the regulations, but affect the format of the form along with some updates to the instructions and the List of Acceptable Documents. The impact on companies using electronic I-9s is minimal, other than ensuring the format of the form and instructions you’re using have been updated. But for companies who use paper forms, the new format provides convenience and some measure of assurance. The form and instructions are available at https://www.uscis.gov/i-9.
An Intelligent Form
The new paper form is a “smart” form that can be filled in electronically but still must be printed, signed by hand, and retained as paper. Employers are not required to use the smart I-9, but it can assist in ensuring the form is completed correctly. Each field on the form has a small question mark icon that expands with specific instructions for that field.
A new employee can complete Form I-9 before coming on board, provided there has been an offer of employment and an acceptance. Be aware that the I-9 can’t be used as a pre-screening tool to ensure an employee is authorized to work in the U.S. The latest a new employee can complete the form is three business days after starting work for pay, and all employees must complete an I-9, regardless of how long they are employed.
What to Watch Out For
Read the instructions. The instructions for the updated I-9 have been expanded from 6 to 15 pages and a prudent employer should read through them.
Don’t mandate specific documentation. It’s very tempting to tell a new employee to bring her driver’s license and social security card to her orientation appointment. Everybody has those documents readily available, right? You might think you’re being helpful, but you can’t tell a new employee which documents they should provide for I-9 verification purposes. Instead, give the new employee the List of Acceptable Documents on page 4 of the I-9, and let the employee choose. If you suggest certain documents, you could open yourself up to a complaint that an employee considered those as the only allowable documents.
Fill out every field. Be sure the employee fills out every field on the I-9, even those fields that don’t apply (such as apartment number). This is where the smart form comes in handy, because it automatically populates “N/A” in some fields and reminds you in the field instructions where it’s not automatically populated. Be sure to have the employee note whether they used a preparer and/or translator in the section beneath their signature on page 1.
Help with documentation. Section 2 now includes drop down menus to conveniently select common documents; however, it’s not an exhaustive list. If a document reasonably appears to be genuine but doesn’t show up on the drop down list, the employer should still accept it.
Be sure to verify in person. The person who signs the Section 2 employer certification must see the new employee face-to-face and must see the original documents. For remote employees and depending on the requirements of your state, you can delegate this verification to another person even if they’re not an employee of your company.
Be aware of a reported glitch. If you downloaded the new Form I-9 between November 14 and 17, 2016, you’ll want to review your forms to ensure employee Social Security numbers appear correctly in Section 1. When the form was first published, numbers were transposed when employees completed and printed Section 1 using a computer. If you notice incorrect numbers, have the employee draw a line through the transposed number, enter the correct number, then initial and date the change. Retain a written explanation with Form I-9 about the correction to cover your bases in case of an audit, and be sure to download the correct version of the form (which was posted November 17, 2016) to use going forward.
With immigration enforcement efforts likely to increase, it’s important for employers to be certain their forms and procedures are complete. This is intended as a high level overview of I-9 rules, so for specific questions relevant to your situation, visit with an employment practices expert.