The U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) implemented a new Form I-9, Employment Eligibility Verification, which employers are now required to use. The new form, dated November 14, 2016, was effective as of January 22, 2017 and will remain in effect until August 31, 2019.
The revised Form I-9 is easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers. In addition, the new form:
• Asks for “other last names used” rather than “other names used.”
• Includes prompts to ensure information is entered correctly.
• Includes a dedicated area for including additional information.
• Allows users to enter information about multiple preparers and translators and includes a supplemental page for the preparer/translator.
Below are some frequently asked questions about the Form I-9.
Frequently Asked Questions
What is the Form I-9?
Since November 7, 1986, U.S. employers have been required to verify the identity and work eligibility of every new hire, citizen and non-citizen. Form I-9 helps employers do this. The form is updated periodically and employers must ensure they provide new employees the complete and most up-to-date forms.
Who must complete Form I-9?
Both employers and employees are responsible for completing their respective portions of Form I-9. New employees must complete the form with accurate information and provide supporting documentation to the employer establishing their identity and their ability to work in the United States. Employers must ensure the form is properly completed, corrected (as necessary), and supporting documentation is provided. However, pursuant to § 7 of the Privacy Act (8 U.S.C.A. § 552a), providing a Social Security number on the Form I-9 is voluntary for all employees unless the employer participates in the E-Verify Program, which requires an employee’s Social Security number for employment eligibility verification. Both parties must sign the completed form either by hand or electronically.
When must the Form I-9 be completed?
Employees must complete Form I-9 any time between the time they accept an offer of employment and the end of the work day on their first day of work. An employer must complete its portion of the form no later than the close of business on the employee’s third day of work. If an employee is hired for less than three business days, then Sections 1 and 2 of the form must be fully completed at the time of the hire, when the employee begins work.
What type of supporting documentation is required?
Form I-9 provides very specific supporting documentation that may be used to establish identity and ability to work. Some documents alone satisfy both the identity and ability to work criteria. These are documents found in List A of the form. Documents in List B only establish an employee’s identity, while documents in List C only establish an employee’s eligibility for employment. Therefore, an employee must provide one document from each list (B and C) if he or she does not provide a document from List A.
Employers cannot specify which documents must be provided, except that employers who participate in the USCIS E-Verify program may only accept List B documents that have a photograph.
Employers must accept any unexpired document(s) (from the List of Acceptable Documents) presented by the individual, which reasonably appear on their face to be genuine and to relate to the person presenting them. Employers are not required to make copies of the documents; however, employers may attach photocopies of documentation to the employee’s Form I-9. Employers who make and attach photocopies must do so consistently for every employee without regard to citizenship or national origin.
Employers must also comply with specified document retention requirements for completed Form I-9 and detailed reverification procedures for current employees.
What if an employee fails to provide documentation?
Employers should terminate an employee who fails to produce the required documents for employment within three business days of the date employment begins.
An employee may present a receipt for a replacement document (in the case of lost, stolen, or destroyed documents) as a temporary solution. However, if an employee has presented a receipt for a replacement document, the employee must produce the actual document within 90 days of the start of employment. Employers must apply these practices uniformly to all employees.
Are there penalties for failure to comply?
Failure to comply with employment eligibility verification requirements can result in both civil and criminal penalties for an employer. For example:
• Employers who fail to properly complete, retain and/or make Form I-9’s available for inspection may incur civil penalties between $216 and $2,156 for each employee for which the form was incorrect.
• Employers who knowingly hire unauthorized aliens or continue to employ aliens who become unauthorized to work may be ordered to cease and desist and pay a penalty between $539 and $21,562 for each unauthorized alien, depending on the number of prior offenses.
• Employers engaging in a pattern or practice of knowingly employing unauthorized workers may face criminal penalties of up to $3,000 in fines and imprisonment of up to six months.
Civil and/or criminal penalties may also be imposed on employees in certain circumstances.
While this article highlights key areas of compliance, there other necessary requirements employers must follow for verifying and employee’s identity and eligibility for employment to remain compliant. Failure to comply can result in significant penalties. Employers are encouraged to ensure they are using the most up-to-date Form I-9 for all new hires and to review the form instructions and the U.S. Citizenship and Immigration Services Handbook for Employers. Employers should consistently review and audit their processes and work with counsel or other trusted advisors to ensure compliance.