New I-9 Form Goes Into Effect September 18, 2017

New I-9 Form Goes Into Effect September 18, 2017

The US requires that companies only hire employees who are eligible to legally work in the United States — either US citizens or foreign citizens with the appropriate authorization. Form I-9 is the Employment Eligibility Verification Form used for verifying the identity and employment authorization of anyone hired in the US.

The Department of Homeland Security (DHS) has issued an updated version of Form I-9, which is effective September 18, 2017. The good news is that in comparison to earlier I-9 updates, these changes are not as dramatic.

However, it is still critical to understand the changes and ensure that your Form I-9 processes don’t leave you open to potentially costly fines for non-compliance.
 
The instructions have been revised in two ways:

  1. DHS modified when the form needs to be completed. The previous I-9 instructions stated that “[s]ection 1 must be completed no later than the end of the employee’s first day of employment.” The new instructions remove “the end of” to now state “no later than the employee’s first day of employment.” According to the National Law Review, a very strict interpretation of these rules would indicate that section 1 must be completed early in the first day of employment. DHS has not responded to requests for explanations regarding this change.
  2. The instructions now indicate the new name of the government office that enforces I-9 antidiscrimination rules: specifically the Department of Justice’s Immigrant and Employee Rights Section (IRE). Previously, this department was named the DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).


DSH has also updated the list of Acceptable Documents by updating List C, which are documents that show employment authorization. Specifically, the list is updated to include Consular Report of Birth Abroad Form FS-240, which is issued to certain employees born overseas to a parent who is a US citizen. This is the most current version of the certification issued by the US State Department, and although it has been in use for some it, employers were previously told that it was not acceptable. This is no longer the case, and according to the Society for Human Resource Management (SHRM), all birth certificates issued by the US State Department (Form FS-545, Form DS-1350 and Form FS-240) will be compiled into selection C#2 in List C. For employers that use E-Verify, that system has also been updated to reflect this change so that an employer can now select Form FS-240 during the case inquiry following I-9 completion.

Other items under List C have also been renumbered. Only the first item, the unrestricted social security card, remains in the same place as item 1.

The Handbook for Employers has also been updated to reflect the new Form I-9 changes. DHS is also claiming that the new handbook is easier to navigate.

It is in your best interests to use the new Form I-9 immediately moving forward. It is not acceptable to update an old Form I-9; only the new form should be used. SHRM recommends recycling any older printed versions and instruct all hiring managers and human resources staff to download the new Form I-9 for use with new hires from this point moving forward.

Although the changes to Form I-9 are rather minimal, non-compliance still carries potentially significant fines. Increases to these fines were introduced last year. When determining the level of fines, the courts consider the following five factors:

  1. The size of the employer’s business
  2. The employer’s good faith
  3. The seriousness of the violations
  4. Whether the individual in question was an unauthorized alien
  5. The employer’s history with previous violations


It’s typically in a company’s best interest to periodically conduct an internal audit to identify and correct any flaws in their Form I-9 or processes. To avoid mistakes — as well as fines during audits — we’ve compiled a list of tips to help you have a strong I-9 procedure in place:

  1. Don’t be afraid to help employees fill out Section 1. You can avoid a lot of errors by questioning employees if you see them filling out something incorrectly in this section.
  2. Purge and destroy I-9s after the proper timeframe. By keeping old I-9s, you are opening yourself up to additional liability and possible fines if you are audited.
  3. Be sure to document your hiring procedure as it relates to the use of Form I-9.
  4. Do not keep I-9 forms in the employee file. This makes it harder to purge forms as they are no longer needed.
  5. Be sure to make copies of supporting documentation.
  6. For remote employee, oftentimes people hire an agent to complete Section 2 of Form I-9. The person signing Section 2 must be the person who physically reviewed the supporting documents.
  7. Do NOT ask for immigration status.
  8. You cannot ask for a green card or social security card. Nor should you accept more documentation than is necessary or tell the employee which documents they are to provide.
  9. You must treat each person the same: ask the same questions in the same way to everyone.


For more information about Form I-9, including downloads of the latest Form I-9 as well as instructions, visit the Department of Homeland Security website at: https://www.uscis.gov/i-9.

Sources:
https://www.natlawreview.com/article/dhs-issues-new-version-form-i-9-effective-september-18-2017
https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/uscis-issues-revised-new-form-i9.aspx
https://www.uscis.gov/i-9

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