It’s time for employers to get acquainted with the new Form I-9. The form is easier to use than the old version, but with just a few weeks left before employers must make the switch, it’s a good idea to get familiar with the form now, says Jacob Monty, managing partner at Monty & Ramirez, LLP, and a coeditor of Texas Employment Law Letter.
U.S. Citizenship and Immigration Services (USCIS) issued the form on November 14, 2016. While employers are free to use either form for now, they must use the new form beginning January 22.
Of the changes, the “smart” features are the most notable. They make the form much more user-friendly, Monty said. “It’s really the first time employers can have an automated experience that makes it idiot-proof,” he said.
According to Monty, one of the most common errors occurs in Section 2, where the form asks for documentation. Many employers mistakenly ask for too many documents. The new, automated form makes that error impossible now, he said.
“This is a welcomed version that employers really needed,” Monty said. But even though they make life easier, the new features make it important to switch to the new form early. “I would encourage employers to get familiar with it now,” he said.
Importantly, the smart features of the form require employers to have updated software. If you’re unable to use the form, USCIS still offers a “paper version.”
The form also makes clear that the person who reviews an employee’s documentation must be the person who signs the required attestation. Monty said some employers had hoped that a company representative could review the documents—for a new remote employee, for example—while a corporate official at another location signs the form. Under the previous version of the form, it was uncertain whether that was permissible, he said, but “the new form makes clear that the person who signs must be the person who looked at the documents.”
Short of meeting with the employee in person, that leaves employers with only one option: hire a representative to review the documents in the employee’s presence and sign the form. But, of course, employers still will be liable for any violations, according to USCIS’s website.
Despite the form’s new smart features, employers still must print I-9s and obtain required signatures on the hard copy.
As was the case before, only employers in Puerto Rico are permitted to use the Spanish version of the form. Monty acknowledged that creates a problem for some employees, but he discourages employers from serving as translators. It’s tempting to try to help an employee, he said, but the employer may take on the added responsibility of being the form’s preparer. “We really discourage that,” he said. At most, an employer could consider printing a completed sample I-9 for the employee to review. “But don’t actually complete it for the employee,” he said.
Time for an audit
In addition to switching to the new form, employers should audit their I-9s, Monty said. The federal government recommends audits as a best practice, and Monty encourages employers to conduct them internally.
But that doesn’t mean you need to look at every form, Monty said. If you have an inordinate number of employees, you don’t have to review the whole workforce. Maybe review only a third, Monty suggested, because you’re going to see the same errors repeated.
Also, it’s important that the person performing the audit is not the person who prepares the I-9s. “The most successful internal audits I’ve seen are when you have a second set of eyes look at the document,” he said. “If you were the one preparing the I-9, it’s not as helpful because you’re not going to see the error.”
And if you do discover errors, correct them in red ink, and date them accurately. “The law doesn’t require perfection, but it does require good faith,” Monty said. You never want to backdate an I-9 or falsely make it appear that you completed it correctly the first time. In fact, it’s better to call attention to the fact that you didn’t do it correctly the first time and avail yourself of the law’s strong good-faith defense, he said.
Ensuring that your I-9s are completed correctly may soon be more important than ever, Monty noted. If the Trump administration’s focus on immigration is any indication, “employers are going to be held accountable for getting this form right.”
To access all versions of the form and its instructions, visit www.uscis.gov/i-9.
Do you have questions about using the new Form I-9? On January 27, BLR will present Smart I-9 Recordkeeping: How to Complete, Retain and Re-Verify Using the New Form I-9. For more information on the webinar, click here.