Form I-9

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The co-chairs of Fox Rothschild’s Immigration practice group will be making presentations in many Fox offices on Immigration Compliance: What Employers Need to Know over the next few months. These presentations include an overview of immigration and workplace compliance, including Form I-9 and government inspections.

Topics:

  • Specifics about executing the I-9 under current rules
  • Documenting employees without violating anti-discrimination laws
  • Identifying and reviewing documents for authenticity
  • Auditing and correcting I-9 forms
  • Navigating pitfalls in the process
  • Understanding the penalties for noncompliance, including simple clerical errors
  • Handling the receipt of Social Security no-match letters
  • Best practices for developing a companywide compliance program
  • Live Q&A

These Fox offices are currently scheduled for live programs on the following dates:

Ali Brodie            Los Angeles, California                  January 16, 8:30am

Alka Bahal           Princeton, New Jersey                   January 17, 12:00 noon

Alka Bahal           Morristown, New Jersey               January 25, 12:00 noon

Alka Bahal           New York, New York                       January 29, 8:30am

Ali Brodie            Seattle, Washington                       January 31, 8:30am

Follow the links to the cities above to register for these programs. You may also register by calling 1.877.778.7369 or by emailing the events team at events@foxrothschild.com. Check back here for additional dates and times as more programs are added.

ICE workplace audits are on the rise.  And if you didn’t know, the federal government and California are not harmonious in their views on immigration issues. That means that ICE raids on California employers are likely to continue, especially in target industries such as hospitality, construction, agriculture, tech, and manufacturing. And if you want to minimize your company’s exposure to massive fines and possible criminal prosecution, this issue should be on your radar.

One of the biggest traps of late seems to be the I-9 form.  Under federal law, all employers in the US are required to complete the I-9 in order to verify the identity and employment eligibility of new hires. Employers are required to have a completed I-9 on file for every employee. The employee must complete Section 1 of the I-9 at the time of hire (and absolutely not before acceptance of a job offer). The employer must complete Section 2 of the I-9 within three business days of the hire date. I-9s must be retained for three years after the date of hire, or one year after the date employment ends, whichever is later.  Failure to abide by these rules can lead to very severe penalties and fines.

When ICE wants to examine your workforce, it provides a Notice of Inspection that gives you just three days to get your I-9s and payroll records ready for review. Once that happens, it is very hard to fix any problems you may have. There just isn’t time and ICE has discretion to disregard any remediation efforts after the service of the NOI.

What can be wrong with an I-9, you ask?  Well if our audits of I-9s are indicative, close to 50% if not more usually have problems, including:

Hand with pen fills in a paper form us immigration visa
  • Incomplete, with information, signatures, and dates missing.
  • Incorrect information, such as a document for List B or C in the List A column.
  • Signatures that don’t match the names on the documents.
  • Blank Section 2 with the List A or B and C documents simply attached.
  • Documents that don’t match the names on the form.
  • Older or incorrect versions of the I-9 used.
  • And on and on and on….

The I-9 may look like a simple form, but it is not and can cost the employer significant cash in fines … and possible criminal prosecution!  So if the person completing your new hire paperwork isn’t skilled or trained on how to complete this form, chances are your I-9s are imperfect.  It is not uncommon when we perform I-9 audits to see the same mistake(s) repeated over the course of thousands of I-9s!  That means risk, and these days, big risk.

The other problem is that you can’t just ask specific employees to re-verify their status, for example if there is a rumor that the employee may be undocumented, because that can lead to claims of discrimination. Remember national origin and citizenship status are protected categories. So the only way to fix the I-9s is to audit all of them, fix all of the mistakes that you can, and do it before any audit or notice of inspection from a government agency.

Oh, and please do not audit without the attorney-client privilege protection. The last thing you want are emails indicating that your I-9s are wrong, or your employees are illegal, and you knew about it and didn’t fix it. Knowingly employing, hiring, or continuing to employ undocumented workers is a crime. Employers are subject to criminal prosecution—yes, that means possible jail time.

What can employers do proactively to mitigate civil penalties and exposure to criminal prosecution?

  • #1!  Work with counsel to conduct a proactive internal audit.  Doing so before ICE arrives with a NOI is the most effective way of mitigating fines.
  • Ensure your HR representative(s) responsible for completing I-9s with new hires is well trained and savvy as to what they legally can and cannot say to the employee during the verification process.  Simply asking the employee to present a specific document in the course of completing the I-9 is unlawful.
  • Conduct regular training for HR personnel and team leaders/managers who interact with employees as to the do’s and don’t’s of communicating with employees.
  • Establish immigration compliance I-9 and/or E-Verify standard operating procedures—also used to show good faith compliance and a factor for mitigating fines.
  • If storing I-9s electronically, check with counsel to ensure you are storing them properly and in a way that is not further exposing the company to additional violations.
  • Streamline your company I-9 process so as to minimize room for error in delinquent completion of the I-9 or mistakes on dates of hire.
  • Establish a ‘tickler’ calendar reminder system to handle reverification for those employee’s with work authorization documents containing an expiration date.  Remember- the burden is on the employer to ensure their employees are work authorized during the entire period of employment.
  • Act sensibly:  employers should not be overzealous in their employment verification practices as this too may lead to claims of discrimination and/or retaliation.

This is budget planning season for many employers.  Our advice is to add an I-9 audit to your budget for 2019.

Businesswomen filling paperwork for agreement
Copyright: bignai / 123RF Stock Photo

More than 5,200 businesses around the country have been served with I-9 inspection notices since January in a two-phase nationwide operation conducted by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) in what appears to be the largest I-9 inspection action ICE has undertaken to date.

This latest round of workplace audits on employers clearly indicates that the I-9 inspection is now a top priority in U.S. immigration enforcement policy that targets employers rather than employees via the workplace raids of the past.

This alert outlines the current processes in place for I-9 inspections and includes practical advice on how to respond to an audit as well as steps to take now to ensure that your business is in compliance.

Notice of Inspection – NOI

The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer, which informs them that HSI will perform a comprehensive review of (i.e. audit) their hiring records (specifically Form I-9s and associated documents) to determine compliance with employment eligibility verification laws.  Upon receiving an NOI, an employer is required to produce the company’s I-9s within three business days, after which ICE will conduct an inspection for compliance.

In Phase I of the current operation, between Jan. 29 and March 30, 2018, HSI served 2,540 NOIs and made 61 arrests.  During Phase II, between July 16 and 20, HSI served 2,738 NOIs and made 32 arrests.

ICE is the federal agency responsible for upholding the Immigration Reform and Control Act (IRCA), a law designed to protect jobs for U.S. citizens and others who are lawfully employed, eliminate unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.

Under IRCA, employers are required to verify the identity and employment eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification Form I-9. ICE/HSI uses the I-9 inspection program to promote compliance with the law, part of a comprehensive strategy to address and deter illegal employment. Inspections are one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws.

A ‘Culture of Compliance’

Derek N. Benner, Acting Executive Associate Director for HIS, stated: “Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records.  All industries, regardless of size, location and type are expected to comply with the law.”

Benner contends that worksite enforcement “protects jobs for U.S. citizens and others who are lawfully employed, eliminates unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.”

HSI increased the number of I-9 audits, Benner said, to “create a culture of compliance among employers.”

All employers in the United States are required to have a Form I-9 on file for all employees to verify their identity and authorization to work in the United States. The law requires that employers execute this process upon hire of an employee, review and record the individual’s original, valid identity documents and determine whether those documents reasonably appear to be genuine and related to the individual.

HSI follows a detailed process when conducting a Form I-9 inspection.  Guidance on that process and the associated civil fine structure can be found here.  This guidance outlines ICE’s process for a Form I-9 inspection, the penalties for various related violations, and the factors ICE considers during the course of the inspection and in determining a fine, including mitigating or enhancing factors involved.

Civil Fines and Potential Prosecution

Employers determined not to be in compliance with the law face the likelihood of civil fines and could ultimately face criminal prosecution if it is determined that they were knowingly violating the law. All workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal from the country.

Failure to follow the law can result in criminal and civil penalties.  In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.  (See our earlier post on this topic.)

Monetary penalties for substantive and uncorrected technical violations, errors that the layperson often view as ‘paperwork errors’ range from $220 to $2,200 per violation and penalties for knowingly hiring and continuing to employ violations range from $3,548 to $19,242 per violation. In determining penalty amounts, ICE imposes a higher fine rate on employers with a higher percentage of I-9s with violations and then considers five factors to either enhance or mitigate fine amounts: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers and history of previous violations.

What To Do if the Government Wants to Inspect Your I-9s:

  • Call your immigration attorney immediately. The time period for responding to ICE is short and it is critical that documents submitted in response to the notice be well-organized and presented in the best light possible.
  • DO NOT submit any documents to ICE without seeking the advice of counsel.
  • DO NOT consent to an immediate inspection if agents show up without warning. You have up to three days to respond/submit documents.
  • DO NOT submit more than what is asked for (such as expired I-9s for former employees, payroll records listing employees not subject to the inspection, etc.)
  • DO NOT let agents take original records without permitting you to take copies
  • DO NOT allow officers to talk with any employees or company officers before you call your attorney.
  • If Department of Labor agents show up for an inspection without notice, decline the inspection. They will notify USCIS/ICE.
  • DO NOT panic and try to correct or otherwise repair your records without the assistance of qualified immigration counsel. Corrections made or new I-9s prepared after the issuance of an NOI are not accepted by ICE, and may create the appearance of bad faith.

The Tools of Protection

Employers that have not yet received an NOI should take immediate steps to protect against possible future violations.

Two key tools in ensuring IRCA compliance are private internal audits and specialized training. Employers should conduct private internal audits with the assistance of a qualified immigration professional to review I-9 documents and correct any errors in advance of an inspection. This type of periodic audit can not only uncover problems in time to be corrected before the imposition of sanctions, but can also demonstrate the employer’s good faith efforts to comply with IRCA’s verification requirements, a mitigating factor in ICE’s penalty determination process. Because private I-9 audits can be performed over time nd at the employer’s convenience, it is less arduous for a company than the three-day audit period forced by an inspection notice.

Many problems with I-9s stem from simple misunderstandings of the procedures and requirements. This can easily be rectified by having a qualified attorney train your personnel about proper procedures. Because the work environment and employee culture changes with some frequency, along with periodic legal changes impacting the I-9 process, refresher training courses for already “expert” personnel are also recommended.

Although employers can select from a variety of service providers to meet their I-9 audit and training needs, legal professionals with experience with immigration, employment and labor law are better equipped to handle IRCA compliance issues, including audits, training and formal inspections. Fox Rothschild provides companies of all sizes with IRCA compliance training seminars and confidential, internal I-9 audits.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide.  You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

If Congress cannot resolve FY2018 funding issues by December 8, 2017, it will result in another federal government shutdown. Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

We will closely monitor the circumstances and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shutdown. Although employers must still complete the Form I-9 on a timely basis, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations. Federal contractors are recommended to contact their contracting officers to confirm time frames.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry. CBP is deemed an essential function and will likely continue operations at near normal capacity, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shutdown, it will not accept or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Department of Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shutdown because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card. This database, known as SAVE, could be suspended during a shutdown.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

Asplundh Tree Expert Co., one of the largest privately owned corporations in the country, with 30,000 employees and 3.5 billion in annual sales, according to Forbes, has been ordered to pay $95 million in the largest fine against a company for hiring thousands of immigrants who did not have permission to work in the U.S., according to federal officials. Asplundh, a 90-year-old, family-owned company that employs 30,000 workers in the U.S., Canada, Australia, and New Zealand, clears brush and vegetation from electric and gas lines and holds many municipal, state, and federal contacts.

According to the U.S. attorney’s office in Philadelphia, Asplundh employed thousands of undocumented workers between the years of 2010 and 2014 with its top management remaining “willfully blind” while lower level managers hired and rehired employees they knew to be ineligible to work in the United States,” the office said. In addition to having to forfeit $80 million, Asplundh will pay a $15 million civil penalty for not complying with immigration law. Asplundh employed thousands of undocumented workers between 2010 and 2014 with its top management remaining “willfully blind” while lower-level supervisors hired people they knew were in the country illegally to maximize profit.

Homeland Security Investigations began auditing Asplundh Tree Experts on Nov. 19, 2009 to make sure the company complied with federal laws regarding the hiring of immigrants. After being given a list of names, Asplundh fired hundreds of its employees who were ineligible to work in the U.S. Others quit before they could be terminated. After acting like it was complying with HSI demands, Asplundh instead doubled down on its illegal practices, according to federal authorities. Many of the some employees Asplundh had just let go were re-hired under different names using fake or illegally obtained documents. One of its regional managers, Larry Gauger, even went so far as to tell supervisors who worked under him that they had “plausible deniability” because their illegally obtained social security numbers would be positive matches in the E-verify database, court papers state. Gauger has pleaded guilty and is scheduled to be sentenced next month.

“This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit,” prosecutors said in a statement. “With a motivated workforce, including unauthorized aliens willing to be relocated and respond to weather-related events around the nation, Asplundh had crews which were easily mobilized that enabled them to dominate the market.”

ICE issued a statement on 9/28/2017, “Today marks the end of a lengthy investigation by ICE Homeland Security Investigations into hiring violations committed by the highest levels of Asplundh’s organization,” said ICE Acting Director Thomas Homan. “Today’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.”

In a statement on its website, Asplundh said company officials “accept responsibility for the charges as outlined, and we apologize to our customers, associates and all other stakeholders for what has occurred.” Asplundh went on to say that is reviewing the identification of every employee and is adding a photo ID card system which includes the same facial recognition software used by ICE. The company is also adding a compliance specialist trained in ID examination in each region it does business.

Employers should remain alert and vigilant in their I-9 compliance practices. The Asplundh investigation is a lesson in compliance, demonstrating that liability exists not only in the evidence apparent in the paperwork, but also in an employer’s procedures, policies, and practices. An ICE investigation can be triggered from any number of sources, from an enforcement initiative within Homeland Security Investigations to a tip from an individual to the exchange of data between government agencies (SSA, IRS, DOL, etc.). An ICE investigation can result in more than just financial losses due to monetary penalties. These types of investigations, which can often carry on for years, result in the loss of workers and damage to company reputations and image, affecting relationships with customers and the public in general. Our recommendation on best practices is for employers to be prepared by performing private internal audits before ICE comes knocking.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Businesswomen filling paperwork for agreement
Copyright: bignai / 123RF Stock Photo

USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17, 2017. On Sept. 18, 2017 and thereafter employers must use this revised form with a revision date of 07/17/17 N.  It is not necessary to complete new I-9 forms for current employees.  Use the new edition of the form for new hires and reverifications.

Revisions to the Form I-9 instructions:

  • USCIS changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • USCIS removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • USCIS added the Consular Report of Birth Abroad (Form FS-240) to List C.  Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3.  E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • USCIS combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection C#2 in List C.
  • USCIS renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C will change from List C #8 to List C #7.

These changes are also available in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also now available.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Businesswoman filing paperwork
Copyright: bignai / 123RF Stock Photo

On July 12, 2017 USCIS announced that it will release a revised version of Form I-9, Employment Eligibility Verification, on July 17, 2017. This new edition of the form, which will bear a revision date of 07/17/17 N, will become mandatory on September 18, 2017 and will replace all prior editions of the form as of that date. Employers may either use the current edition (with a revision date of 11/14/16 N) or the new edition, once released, through September 17, 2017. As of September 18, 2017, however, only the new edition will be acceptable for new hires or reverifications.

The new edition of the Form I-9 is expected to include the following changes:

 Revisions to the Form I-9 instructions:

  • The name of the “Office of Special Counsel for Immigration-Related Unfair Employment Practices” will be changed to its new name, “Immigrant and Employee Rights Section.”
  • “The end of” will be removed from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • The Consular Report of Birth Abroad (Form FS-240) will be added to List C.
    • Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • All of the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) will be combined into selection Item 2 under List C.
  • All List C documents, except the Social Security card, will be renumbered.
    • For example, the employment authorization document issued by the Department of Homeland Security on List C will change from Item 8 under List C to Item 7 under List C.

All changes will be incorporated into a revised edition of the M-274 Handbook for Employers: Guidance for Completing Form I-9, which is also being revised to make it easier for users to navigate.

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA). Beginning September 18, 2017, employers must use the new version of the Form for all new hires and for re-verifying current employees with expiring employment authorization documentation. [Employers should not complete new Forms for existing employees who do not require re-verification.] A best practice would be for employers to begin using the new edition of the form immediately upon its release.

You may view the Office of Management and Budget Conclusion here and the final Federal register Notice effectuating these changes here.

Once released you may obtain the new edition of the Form I-9 (in English and Spanish), as well as the new M-274 Handbook for Employers: Guidance for Completing Form I-9 here.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On April 17, 2017,  USCIS alerted stakeholders concerning a glitch on the Form I-9.  The glitch specifically relates to any Form I-9 downloaded between November 14, 2016 and November 17, 2016 and the employee’s Social Security number.  Employers who downloaded Form I-9 during this brief period should ensure the employee’s Social Security Number appears correctly in Section 1.  As explained by USCIS, numbers inserted in Section 1- Social Security number field were transposed when the Form I-9 was completed and printed.   Forms completed after November 17, 2016 are not of concern as USCIS repaired the technical error and reposted Form I-9 on November 17, 2016.

Employers who detect a mistake in their employee’s Social Security numbers as written in Section 1 should request the employee draw a strike through the transposed Social Security number, write the correct Social Security number, and write their initials/date in the margin next to the change in Section 1.  It is also recommended that employers attach a written explanation to affected Form I-9s as to the reason for the correction as a safeguard in the event of an audit.

USCIS published the updated M-274, Handbook for Employers: Guidance for Completing Form I-9. The Handbook for Employers provides employers with detailed guidance for completing Form I-9, Employment Eligibility Verification. This version, published on Jan. 22, 2017, replaces the previous version which was published on April 30, 2013. It reflects revisions to Form I-9, which was revised on Nov. 14, 2016. You can review highlights of the changes in the Table of Changes for Revised M-274.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

U.S. Citizenship and Immigration Services (USCIS) released a new revised version of Form I-9 on Monday, November 14, 2016.  The previous editions of the Form (with “03/08/13” in the lower left corner) will remain valid until January 21, 2017. After this date, only the new Form (with “11/14/16” in the lower left corner) is acceptable. Both the English and Spanish (available for use only in Puerto Rico) have been revised.

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

Per USCIS, the changes in the Form are designed to reduce errors and enhance form completion using a computer. The new Form I-9 has been enhanced for easier completion on a computer with drop-down lists, popup calendars for entering 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.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • The preparer/translator information is now on a separate/supplemental page.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

Note that the new form does not require that it be completed on a computer; it only makes it easier if Employers choose to do so. For those who will complete the form manually, there are little to no changes, other than some visual and formatting differences from the prior edition.

As a best practice, employers should begin using the new edition of the form immediately for all new hires and for reverifications of current employees, although the previous editions of the form will remain valid until January 21, 2017. Employers should not execute new Forms for existing employees or prepare new forms to replace existing forms. Employers should use the new version of the form to reverify existing employees.

The new Form I-9 and List of Acceptable Documents, in English and in Spanish, the separate Instructions for Form I-9, and Form I-9 Supplement, Section 1, Preparer and Translator are available on USCIS’ web site. The Spanish version of the Form may only be executed by employers in Puerto Rico. Employers in the 50 states, Washington, DC, and other U.S. territories may use the Spanish version of the Form only as a translation guide and must complete the English version of the Form.

IRCA compliance can be a complicated process, and although employers can select from a variety of service providers to meet their I-9 training needs, legal professionals with experience with immigration, employment and labor law are best equipped to handle IRCA compliance issues.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.