Since November 7, 1986, employers have been required by law to examine documents and complete the I-9 Employment Eligibility Verification Form to verify that all new employees are authorized to work in the U.S. On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) released a new Form I-9. This article discusses changes in the new form and general employer obligations related to the I-9.
The new I-9
What is different on the new form?
The biggest change is that the new form has been expanded to two pages from one page, even though there is little expansion of the information requested.
The instructions have also been expanded. Hopefully, these changes will make it easier to properly complete the form because the form is now easier to read and some instructions are more clear.
The government has also added some new fields to the form, mostly in Section 1.
What changes are there to Section 1, the employee section?
There are now blocks for the employee to add an email address and phone number. However, this information is optional, so employees do not have to complete it.
There are also new spaces for foreign workers with temporary work authorization to complete. Such workers must add their alien registration number or their I-94 admission number.
In general, temporary workers who have an employment authorization card will have an alien registration number printed on the card, while those who are in the U.S. on a work visa will have an I-94 admission number that they receive when they enter the U.S.
Those who received their admission number upon entering the U.S. are also now required to add their passport number and name of country.
What changes are there to Section 2, the employer section?
There is a new block for you, the employer, to add the employee’s name at the top of Section 2.
The section to record information from “List A” documents has also been expanded. Many times employees who provide a “List A” document only need to provide a single document, such as a permanent resident card, in which case you would simply complete the first four blocks under the “List A” column.
In other situations, such as if employee is here on a work visa, the employee would need to provide the passport and an I-94 admission card, and you would need to complete more than the first four blocks to record the information from both documents.
What changes are there to Section 3, the re-verification section?
A new box has been added to Section 3 to print the name of the employer’s representative who signs the re-verification.
When do employers have to start using the new form?
All employers must use only the new version of the I-9 beginning May 7, 2013. However, it can be obtained from the USCIS forms and employers may start using it now.
Are there changes to employers’ overall obligations related to the I-9?
No. As an employer, you remain required to do the following:
• Examine original identity and work authorization documents for all new employees.
• Attest that you have examined the documents and that those documents appear genuine, belong to the employee and are unexpired.
• Attest that to the best of your knowledge the employee is authorized to work in the U.S.
You are also obligated to make sure the employee completes Section 1.
Are there changes to when the I-9 must be completed?
No. The employee is still required to complete Section 1 by the end of the first day of employment. You must examine the employee’s documents and complete Section 2 within three days of the employee’s first day of employment.
Note that the I-9 can be completed before the employee starts work, provided the employee has accepted the offer of employment.
We recommend you complete Section 2 at the same time the employee completes Section 1, the first day of work or when the employee accepts the offer of employment.
If you hire someone on the spot, and he says he does not have his documents with him, we recommend you send him home to get them and then complete the I-9 when he returns.
This approach decreases the risk of getting too busy to complete your section, and in turn, decreases your risk for fines or other penalties.
Are there changes to how long the I-9 must be kept?
No. You must have a completed I-9 for all current employees. Once an employee leaves, then you keep it the longer of these two options:
• One year from date employment ended
• Three years from date of hire
I-9 requirements in general and frequently asked questions
Why is properly completing and keeping the I-9 important?
As an employer, you are required by law to verify the employment eligibility of your employees. Failure to do so can result in extensive fines (some employers have been fined well over $100,000).
In cases where the government has determined that the employer knowingly hired, or continued to employ, unauthorized workers, criminal penalties have also been imposed.
For whom do I have to complete an I-9?
All employees hired since November 7, 1986. An employee is anyone who works for you for pay and will receive a W-2 wage statement for the year.
Note that even if a family member works for you, if you pay him and he receives a W-2, you must complete and retain an I-9 for him.
Do I have to use a specific version of the I-9?
Yes, you must complete and retain the English version of the Form I-9. Only employers in Puerto Rico may complete the Spanish version. You must also use the most current version of the I-9.
What if my employee doesn’t speak English or needs help completing Section 1?
You can have someone translate for the employee or assist him in completing Section 1. That person must then complete the “Preparer or Translator Certification” at the end of Section 1.
The person who translates or assists the employee with Section 1 should not be the same person who completes Section 2 and signs the I-9 for the employer.
You may also use the Spanish version of the I-9 as a translation tool for an employee who speaks only Spanish. However, someone would still need to complete the “Preparer or Translator Certification.”
I understand that the employee has to present documents for me to review and use to complete the I-9; which documents?
The acceptable documents are listed on the last page of the I-9 packet. The employee has to present either a “List A” document, which sometimes includes more than one document; or a “List B” and a “List C” document.
Can I request that my employees present certain documents, such as having everyone present a driver’s license and Social Security card?
No. Requesting specific documents from employees can be interpreted as a discriminatory hiring practice. You should present the list of documents to the employee and explain that he needs to present one from “List A” or one from “List B” and one from “List C.”
Can I examine copies of the documents?
No, you are required to examine original documents. This is critical as you sign the I-9, under penalty of perjury, stating that you have examined original documents.
What if one of my other employees examines the documents?
Then that other employee needs to complete and sign the I-9.
Am I required to make copies of the documents?
No. Federal law does not require that you keep copies of the documents. However, some states, such as Colorado, have a separate law that requires you to do so, so you need to be familiar with your state law as well.
I understand that I have to retain completed I-9s for a certain time; wouldn’t it be easier just to keep them all?
No, we recommend you shred the I-9s of former employees, according to the government’s rules. If you are audited, the government can penalize you for mistakes made on an I-9 for someone whose I-9 you could have disposed of 10 years ago.
Additionally, timely disposing of the I-9s of former employees demonstrates regular compliance with the law.
Where do I go if I have questions on the I-9?
A good resource is the USCIS’ M-274 Handbook for Employers or you may consider specific legal counsel
from a qualified immigration attorney. PD
Emily Curray is the managing partner of the Denver, Colorado-based immigration law firm of Stern & Curray.