All employers, including nonprofit organizations, are required
to verify the identity and employment authorization of individuals
hired to work in the United States, citizens and noncitizens alike,
within three business days of the first date of active employment.
An employer satisfies this requirement by completing Employment
Eligibility Verification Form I-9 (Form I-9), as provided by the
Department of Homeland Security's U.S. Citizenship and
Immigration Services (USCIS). Earlier this year, USCIS published an
updated Form I-9 that employers were required to use commencing on
May 7, 2013. Prior versions of Form I-9 no longer can be used
for new hires or necessary re-verifications, and failure to use the
updated Form I-9 could subject an employer to monetary
penalties. The new Form I-9 is available for free download here.
In general, the updated Form I-9
contains several revisions that USCIS states are "designed to
minimize errors in form completion." Such revisions include a)
adding data fields; b) improving the form's instructions; and
c) revising the layout of the form and expanding the core form from
one to two pages.
The most common question we
anticipate from the new Form I-9 is, "For whom do I need to
complete this updated Form I-9?" As stated above, all
employers must use the updated Form I-9 going forward for all new
hires and re-verifications. Although the term "new hires"
is self-explanatory, there may be some confusion regarding
re-verifications. As a threshold matter, employees who are U.S.
citizens never need re-verification. For all other
employees, the employment authorization must be re-verified upon
the expiration of their employment authorization and/or immigration
status. Thus, while employers must remain cognizant of the
expiration dates of these documents, they also should be careful
not to seek or require unnecessary re-verifications, because such
action could lead to claims of race or national origin
discrimination.
For further information, you may
want to review the Notice from the Federal Register regarding the
updated Form I-9 and USCIS' Guidance for Completing Form I-9.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.