Are you using the new Form I-9?

by Elaine Young

On March 8, U.S. Citizenship and Immigration Services (USCIS) released the long-awaited new Form I-9 and its accompanying M-274 employer handbook. Employers were required to start using the new form on March 8, but USCIS is allowing a 60-day grace period in which the old forms (dated 02/02/09 and 08/07/09) will be accepted. So beginning May 7, employers will need to start using the new form. Employers using electronic vendors during the I-9 process should contact those vendors now to ensure their updates are in place by May 7.

A few things to keep in mind
As employers transition to the new form, there are a few things to keep in mind:

1. Make instructions available to employees. Form I-9 has stretched to two pages, and the instructions are now six pages long. The instructions offer more practical guidance on each new I-9 item, so keep them handy. Also, be sure to make the instructions available to employees as they are completing Section 1. Among other things, they provide better definitions of the selections for immigration status (e.g., citizen, noncitizen national, and alien authorized to work).
2. Section 1 must be completed by the employee. It is not acceptable to prepopulate Section 1 unless you also complete the “Preparer or Translator Certification” that follows Section 1. If an employer uses an electronic I-9 system that pulls data from other HR materials, even if the employee provided that data, the employee has not completed Section 1, and preparer certification is required. The employee still must sign Section 1, even if preparer certification is included.
3. E-mail and phone number are optional. The new Section 1 includes boxes for the employee’s e-mail address and phone number. Although the form doesn’t indicate that those fields are optional, the instructions state that they are. Employees who choose not to provide the information should write “N/A” in the box.
4. Social Security number usually isn’t optional with E-Verify. If your organization has registered with and is using E-Verify, employees are required to include their Social Security number in Section 1. For employees of other employers, completion of the box is optional.
5. Section 1 must be completed by day one. Employees must complete and sign Section 1 no later than the first day of employment but not before accepting a job offer.
6. New field: first day of employment. Employers completing Section 2 must indicate the employee’s first day of employment. In an I-9 audit, expect U.S. Immigration and Customs Enforcement (ICE) and USCIS to compare that date to the employee’s signature date in Section 1 and the employer’s signature date in Section 2.
7. Reverify. The Section 3 “reverification” and “rehire” fields are now more user-friendly. Specifically, they provide a space for an employee’s new name and boxes to indicate which updated List A or List C document he is presenting to demonstrate ongoing employment authorization.
8. Retain. The new M-274 handbook for employers offers clarity on a number of I-9 retention policies. For example, once an employer has securely stored an I-9 in electronic format (e.g., by scanning the original form), it can destroy the hard copy.

Final reminder
Remember, ICE enforcement of I-9 compliance is at an all-time high. ICE worksite enforcement efforts generated $138 million last year, with more than 3,000 employers being audited. If your company is preparing for a self-audit, it’s a good idea to use the new I-9 instructions and handbook for employers as primary resources.

Elaine Young is a member of Kirton McConkie’s International section in the Salt Lake City, Utah office. She has significant experience handling the immigration, tax, and benefits aspects of cross-border employment, including inpatriate transfers and working with counsel around the world to help U.S. companies send their employees abroad. She may be contacted at eyoung@kmclaw.com.