United States: New I-9 Form Takes Effect September 18, 2017 - What's Changed And Important Reminders To Ensure Compliance

The U.S. Citizenship and Immigration Services ("USCIS") has issued a new version of the Employment Eligibility Verification, Form I-9 that employers must begin using no later than September 18, 2017. Employers may begin using the new Form I-9 (revision date 07/17/17) immediately. However, as of September 18, 2017, only the new version will be accepted. The new version may be accessed here.

Fortunately, the revisions to Form I-9 will have almost no practical effect. However, failure to use the new version is a Form I-9 violation that can lead to civil penalties in the event of an audit by Immigration and Customs Enforcement ("ICE"). The current administration has made enforcement of immigration laws a top priority. Thus, employers should review and update their Form I-9 policies and procedures to ensure compliance.

What's Changed?

Revisions to the Instructions:

  • The USCIS changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name: Immigrant and Employee Rights Section.
  • The USCIS removed "the end of" from the phrase "the first day of employment."

Revisions to the List of Acceptable Documents:

  • The Consular Report of Birth Abroad (Form FS-240) was added as an acceptable document to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • The USCIS combined all the certifications of report for birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • All List C documents, except the Social Security card, were renumbered. For example, the employment authorization document issued by the Department of Homeland Security on List C will change from List C #8 to List C #7.

The USCIS included all of these changes in a revised Handbook for Employers: Guidance for Completing Form I-( (M-274), which is also easier for users to navigate.

Important Reminders to Ensure Compliance:

Form I-9 requirements were established when Congress passed the Immigration Reform and Control Act ("IRCA") in November 1986. IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

Employers must make available to new employees the complete instructions to Form I-9 and the Lists of Acceptable Documents. Newly hired employees must complete and sign Section 1 of Form I-9 no later than their first day of employment. New employees must then present either one document from List A or one document from List B in combination with one document from List C to their employer. The documents must be original and unexpired. Employers are required to physically examine each document to determine if it reasonably appears to be genuine. Employers must then complete and sign Section 2 of Form I-9 within three (3) business days of the date of hire of their employee (the hire date means the first day of work for pay). For example, if your employee began work for pay on Monday, you must complete Section 2 by Thursday of that week.

Employers must retain the completed I-9 forms for three (3) years from the first day of employment or one (1) year from the last day of employment, whichever is later. These records must be kept by employers and made available for inspection, as officials from the Department of Homeland Security, the Department of Labor, and the Immigrant and Employee Rights Section of the Department of Justice may inspect an employer's records, which must be produced within three (3) days of a request. Failure to comply with these requirements can result in civil and criminal penalties.

Additionally, some states have enacted laws which require employers to use the E-Verify program within three (3) days of an employee beginning work. In some states, the failure to comply with the E-Verify requirement can result in the state temporarily suspending an employer's ability to act as an employer, essentially shutting down the employer's operation.

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.

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