On November 14, 2016, U.S. Citizenship and Immigration Services (“USCIS”) issued a revised Form I-9.  The prior Form I-9 which has a 2013 revision date, may only be used until January 21, 2017.  Employers should transition to using the new I-9 as soon as possible.  Immigration & Customs Enforcement (“ICE”) requires use of the new I-9 no later than January 22, 2017.

Employers must maintain a completed Form I-9 on file for every employee on their payroll and for terminated employees during the required retention period.  The purpose of the Form I-9 is to require the employer to establish the employee’s identity and authorization to work in the U.S.

New Form I-9 Changes

The new Form I-9 was released in two formats:  a smart digital version and a static paper version.

The digital version of the revised I-9 is a welcome change for employers as it is more user friendly and will automatically flag any missing fields.  Both formats of the new I-9 may be downloaded at https://www.uscis.gov/i-9.

Some of the new changes for both forms include:

  • The I-9 is now separate from the long instructions; and
  • Page 2 has a designated space for employers to note additional information regarding any unusual situations, rather than having to write in the margins or attaching a memo.

The most important features of the smart digital version include:

  • The form now checks whether required fields are entered correctly. For example, the form will notify the user of any missing fields, dates that are not inputted in mm/dd/yyyy format, and social security numbers that are missing a digit;
  • Drop-down lists and calendars;
  • The form will automatically populate “N/A” in certain subsequent fields depending on the answers provided;
  • Embedded instructions that pop-up when the cursor hovers over a particular field; and
  • Buttons that allow users to access instructions, start the form over, and print.

Not an Electronic I-9 Software Program

It should be noted that the new smart form is not an “electronic I-9 software program.”  Employers that do not use a digital I-9 software program must still print the form and obtain handwritten signatures.  Software vendors providing digital I-9 services will be required to update their Form I-9 and incorporate the new features.

Possible Uses of the Smart Form I-9

Some employers may wish to take advantage of the embedded instructions which can help both the employer and the employee properly complete the otherwise confusing Form I-9.  For example, a company could e-mail the smart Form I-9 to an individual that has accepted an offer and will be starting work with the company soon.  The individual could use the embedded aids to properly complete Section 1 of the I-9 remotely.  The individual could then print the form, sign and date it, and bring it to work on the first day of employment along with proof of work authorization.  The employer could then fill out Section 2 of a smart Form I-9, print it, sign and date it, and then combine Page 1 and 2 and attach Page 3 (the reverification page for the future).

Likewise, an employer who elects to use the static paper version can use the embedded instructions in the smart Form I-9 as an aid in properly completing the I-9.

General I-9 Tips

On August 1, 2016, USCIS announced a significant increase in fines for I-9 violations.  Here are a few tips to prevent common I-9 errors:

  1. Employee Timing:  The employee must fill out Section 1 of the I-9 no later than the first day of employment.  It may be done earlier, but only after an offer of employment has been extended and accepted.
  2. Employer Timing:  The employer must complete Section 2 of the I-9 no later than the 4th day of employment – 3 days after the first day of employment (the so-called “Thursday rule”).
  3. Original Documents:  The employer must request and examine the original work authorization documents of the employee.  A photocopy or scanned copy will not suffice.  This means that you cannot verify an employee remotely using digitally scanned or faxed documents.
  4. Never Accept Expired Documents from New Hires:  The only exception is a 90 day grace period for new hires that are U.S. Citizens or permanent residents that have already applied for a replacement document – i.e. a replacement of a U.S. passport, state driver’s license, etc.
  5. Reverification:  Employers should not re-verify the I-9 of an existing employee who is a U.S. Citizen or permanent resident merely because his/her documents have expired.  However, foreign national workers employed with temporary employment authorization must be carefully tracked and timely re-verified prior to the expiration of their I-94 or work permit.  In certain instances, there is automatic continuing work authorization for a limited period of time for certain foreign nationals who have timely filed for an extension of their work authorization (i.e. TPS, H-1B, L-1, etc.).  Contact counsel before terminating someone in this situation.
  6. I-9 Errors:  It is a good idea to periodically audit your I-9’s to make sure that you have one on file for every active employee.  In addition, it is important for HR to ensure that all applicable I-9 fields are completed.
  7. Retention:  Maintain I-9 records throughout employment and for 3 years after termination.  This is a simplified, but practical version of the retention rule.
  8. Spanish Form:  There is a paper version of the I-9 in Spanish, but it may only be used in Puerto Rico.

Sheppard Mullin’s Labor & Employment practice will continue monitoring developments in this area.  If you have any questions, please contact your Sheppard Mullin attorney, or the authors of this article — Greg Berk or Kevin Houng.