Employers Required To Use New I-9 Form Effective May 7, 2013

Beginning on May 7, 2013, employers must use only the new I-9 Employment Eligibility Verification form in order to satisfy their obligations concerning employment eligibility verification. This latest version of the I-9 form replaces all prior versions and contains three sections. The employee must fill out Section 1. The employer must fill out Sections 2 and 3. The six pages of instructions that precede the form must be made available to the employee as he or she completes Section 1. Employers must retain a completed I-9 Form for each employee for as long as the individual works for the employer, preferably in a dedicated file separate from the personnel file, in the event of an I-9 audit.

In brief, the procedure for maintaining I-9 compliance is outlined below.

Section 1

Newly-hired employees must complete Section 1 of Form I-9 after hire but no later than the first day of employment. The employee’s social security number is not required for Section 1 unless the employer is registered to participate in the E-Verify program. The employee may provide an email address or telephone address in Section 1 at his or her option. All employees must sign the form to attest to their citizenship or immigration status.

The employee must present documents establishing his or her identity and employment authorization no later than the third working day of employment. The portion of Section 1 providing for the certification of a preparer and/or translator certification must be completed only if the employee requires assistance in filling out the form. In that case, the preparer or translator must read the form to the employee, assist in completing Section 1, and have the employee sign the form. The preparer/translator must then complete the certification block.

Section 2

The employer must complete Section 2 of Form I-9 after it has examined the employee’s documentary evidence of identity and employment authorization. Page 9 of the I-9 Form states the acceptable documents (in three lists, A, B and C) which may be presented in various combinations. An employee must present: one document from list A that establishes both identity and employment authorization or a combination of one document from list B (identity only) and one document from list C (work authorization only). The employer may not tell the employee which documents to present.

If the documents on their face reasonably appear to be genuine and relate to the person presenting them, the employer’s obligation to obtain these documents is fulfilled.

To make it easier to figure out whether a document “appears to be genuine,” the USCIS Handbook for Employers contains pictures of sample documents often used for I-9 compliance, and common identification documents that are not acceptable. Relation to the person presenting the documents my be established by checking to see if the photo(s) in the documents resemble the person, that the names on the documents are consistent or can be explained by marriage, and that descriptions of height, eye color and birth date are accurate and consistent.

Upon determining the documents appear to be genuine and relate to the person, the employer must record each document, title and expiration date (if any) of each document on the I-9 form, before returning the documents to the employee. Importantly, the employer may keep a copy of the supporting documents at its discretion. But if it does so it must do the same for all new hires or re-verifications.

Also note that a new field in Section 2 requires the employer to list the first date of employment. In case of a compliance audit, U.S. Immigrations and Customs Enforcement (“ICE”) may compare the start date with the date on which the employee signed Section 1.

Section 3

If an employment authorization document has an expiration date the employer must complete this section when re-verifying that the employee has continuing work authorization thereafter. The employer does not have to re-verify U.S. citizens and lawful permanent residents. And, when re-hiring an employee within three years of completion of the original I-9 form, the employer has the option to just complete Section 3 rather than do a whole new I-9 form.

Penalties for I-9 Violations

The minimum penalty for knowing employment of an unauthorized immigrant has been increased to $375, with a maximum penalty for the first violations increased to $3,200. The maximum civil penalty for multiple violations is currently $16,000. Penalties are assessed on a per-employee basis. For each alleged violation, the employer has the right to a hearing before an administrative law judge in the Executive Office for Immigration Review. Note that the increase in penalties has been accompanied by an increase in Form I-9 audits.

In light of the above, employers would be well advised to formulate and put in place an I-9 compliance policy.