On March 8, 2013, U.S. Citizenship and Immigration Services (“USCIS”) released the long-awaited new Form I-9 for employers. The new form is available here and features a newly-designed layout, more detailed instructions and additional data fields for completion. Employers should begin using the new form immediately. Here is what’s new:
New Layout
The new Form I-9 was expanded to two pages and includes six pages of detailed instructions. The new layout features clearly defined fields for inserting information, including the following:
- Separate employee signature box;
- Properly formatted box for employee’s social security number; and
- Prominently displayed employee attestation section.
In-Depth Instructions
The instructions to the newly designed Form I-9 are six full pages in length, which is significantly longer than the two and a half pages of instructions in prior versions. These detailed instructions address a variety of I-9 issues so it is critical that employers review these instructions carefully. It is also important to note that both the instructions and List of Acceptable Documents must be available to employees.
The most notable changes to the instructions are:
- Confirmation that Form I-9 should never be completed before the employee accepts the job offer;
- Additional information on the employee attestation box in Section 1 to assist employees in selecting and completing the appropriate attestation;
- Guidance for employers on how to calculate the “three day requirement” for completing Section 2;
- Confirmation that employees should ONLY present either a List A document OR combination of List B and C documents and not documents from all three lists;
- Confirmation that List B documents must contain photographs if the employer participates in E-Verify;
- Confirmation that the employer’s representative must be physically present during examination of the employee’s documents;
- Additional information on when receipts are acceptable documents and how to complete Section 2 when receipts are presented;
- Confirmation that only List A or C documents are acceptable for reverification and employers should not reverify U.S. citizens, noncitizen nationals or lawful permanent residents who presented a Permanent Resident Card for Section 2; and
- Confirmation that reverification should take place on the new Form I-9 version at the time of reverification.
Significantly, USCIS also added language in the List of Acceptable Documents confirming that a social security card is not acceptable for I-9 purposes where the card states, “Not Valid For Employment,” “Valid For Work Only With INS Authorization” or “Valid For Work Only With DHS Authorization.”
Additional Data Fields
There are additional data fields for completion, including:
- In Section 1, there are now boxes for the employee’s e-mail address and telephone number, which are listed as “optional” areas for completion in the instructions.
- There are also new spaces for the employee’s foreign passport information, which is only applicable in certain situations; and
- In Section 2, there are additional boxes for completion when an employee presents a “combination” List A document, such as a foreign passport and I-94 card.
Use the New I-9 NOW
Employers should use the new version of the Form I-9 immediately. However, because many employers now utilize electronic Form I-9 software, USCIS is allowing a grace period of 60 days for employers to make necessary changes and transition to the new Form I-9. Effective May 7, 2013, prior versions of the form can no longer be used.
Heads Up!
New I-9s should NOT be completed for current employees with properly completed I-9s on file, unless reverification is required. Otherwise, employers may violate the anti-discrimination provision of the Immigration & Nationality Act for unnecessary verification.
In the wake of the release of this new Form I-9 and the increase in Form I-9 inspections by the government, it is critical that employers have correct I-9 processes in places and properly completed Forms I-9 on file.
Penalties
Employers who use prior versions after May 7, 2013 may be subject to applicable penalties ranging from $110 to $1,100 for each incorrect Form I-9. Where there is a pattern or practice of violation, criminal penalties may be issued as well.
If you have any questions about the new Form I-9 or other immigration compliance issues, please contact Michael Kim at 317-977-1418 or mkim@wp.hallrender.com, Natalie Murphy at 317-977-1481 or nmurphy@wp.hallrender.com or your regular Hall Render attorney.
