15 September 2016

Ignoring Changes To The New ‘Smart' Form I-9 Will Be Costly

Lewis Brisbois Bisgaard & Smith LLP


Founded in 1979 by seven lawyers from a premier Los Angeles firm, Lewis Brisbois has grown to include nearly 1,400 attorneys in 50 offices in 27 states, and dedicates itself to more than 40 legal practice areas for clients of all sizes in every major industry.
On Aug. 25, 2016, the Office of Management and Budget (OMB) approved a revised Form I-9 for use in Employment Eligibility Verification.
United States Employment and HR
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On Aug. 25, 2016, the Office of Management and Budget (OMB) approved a revised Form I-9 for use in Employment Eligibility Verification. The new form will include enhanced technology features to assist employers in identifying and preventing common Form I-9 errors. USCIS is expected to begin implementing the use of the newly revised Form I-9 in the next several months. The form has not yet been released on the USCIS website, and employers may continue to use the current version of Form I-9 (showing an already-passed expiration date of March 31, 2016) until they feel comfortable with the new Form I-9, but all employers must begin using the new form no later than January 22, 2017. After that date, all previous versions of Form I-9 will be invalid.

The new Form I-9 will include a number of changes designed to make the form more "user-friendly" and eliminate mistakes in the Employment Eligibility Verification process. These changes include the introduction of a 'smart' version of Form I-9 that can be accessed and completed on the USCIS website. The new Form I-9 will not be a true 'electronic' form and will not be submitted directly to USCIS via their website. Instead, it will resemble a more user-friendly PDF form with advanced drop-down options designed for easier form completion. Employers will still be required to print Form I-9, obtain the appropriate employee and employer representative signatures, and retain Form I-9 according to Form I-9 retention requirements. 

In addition, the new Form I-9 will include a Quick Response Code (QR Code) for each form that can be used to streamline the government audit process. This increased audit efficiency may be troubling to employers who are unsure about their level of I-9 compliance, especially considering recent I-9 fine increases. 

The "Civil Monetary Penalties Inflation Adjustment" Final Rule took effect August 1, 2016, and significantly increased fines for Form I-9 errors. For the first offense, the maximum fine increased from $1,100 to $2,156 per Form I-9 violation. Fines for second and third offenses also increased significantly. The maximum penalty for Unfair Immigration-Related Employment Practices increased from $3,200 to $3,563 per charge. Repeat offenders face a new maximum penalty of $21,563. It is important to note that although the Rule became effective on August 1, 2016, the increase to Form I-9 fines applies to all violations that took place after November 2, 2015. Employers who have not recently audited their I-9 records may already be subject to increased fines.  

In light of the upcoming changes to Form I-9 and the recent increase in I-9 related fines and penalties, employers should take this opportunity to do three things to ensure I-9 compliance: 1) Conduct an internal or external audit of at least a representative sampling of Form I-9s completed in the last three years, if such an audit has not been completed within the last five years, to evaluate existing employment authorization liability and identify existing compliance issues; 2) schedule Form I-9 employment authorization training well in advance of January 22, 2017, for all HR personnel and all employees responsible for completion of Form I-9 on behalf of their employer; and 3) contact any I-9 employment authorization vendors who currently provide Form I-9 completion or retention services, to ensure their compliance with the upcoming form change deadline.

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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