New I-9 Goes to 9 (Pages, That Is)

18 March 2013 Labor & Employment Law Perspectives Blog

On March 8, 2013, the Department of Homeland Security (DHS) issued a new version of the Form I-9, Employment Eligibility Verification. DHS is providing a 60-day transition period, and the new form is mandatory as of May 8, 2013. The new document is nine pages, with detailed instructions taking up six of those nine pages. The I-9 Form itself (what must be completed by the employee and the employer) is now two pages. The last page is the I-9 List of Acceptable Documents. DHS also has issued an updated I-9 Handbook for Employers, which provides additional information about completing the I-9 Form and I-9 compliance.

DHS has revised the format of the I-9 Form, renamed some of the questions, and added a 3D barcode, which it plans to use at a future point after technology enhancements are made. DHS also has made other changes. The following are among the key changes on the new I-9 Form:

New Instructions to Form I-9:

  • Confirm that an I-9 Form should not be completed before there is an accepted job offer
  • Provide more detail on the four categories for work authorization listed in § 1
  • Confirm that a post office box address in § 1 is not acceptable and that a foreign address may be entered only if the employee commutes from Canada or Mexico to work
  • Instruct that dates must be written in the month, day, year format (mm/dd/yyyy) (Outside of the written instructions, DHS also has stated that it will accept the date written out (e.g., January 1, 2013 or 01/01/2013))
  • Provide guidance on when an employer may accept a receipt for a document to complete § 2 or § 3
  • Confirm that an employer should not re-verify a U.S. passport or permanent resident card
  • Provide further detail to the employee and employer on the rules and timeframe for completing the I-9 Form

§ 1: Employee’s Section

  • Requests the employee’s telephone and email address. These new fields are optional for the employee (The Social Security number field in § 1 is also optional unless the employer uses the E-Verify program)
  • For individuals who are authorized to work temporarily in the United States and who receive the I-94 admission card when entering the United States, requests the individual’s foreign passport number and country of issuance information (The I-94 admission card is issued by United States Customs and Border Protection (CBP) when the person is inspected for admission at a port of entry such as land border crossing or an airport)
  • Places the warning against false statements and the attestation of the basis for employment authorization in bold above the four categories for work authorization (citizen of the United States, national of the United States, lawful permanent resident of the United States, and alien authorized to work for a temporary period)

§ 2: Employer’s Section

  • Appears on a separate page (page 2)
  • Asks the employer to state the employee’s name at the top of § 2
  • Adds additional fields under List A so that the employer may more easily record information when the List A entry relates to a combination of documents
  • Clarifies the certification made by the employer is to confirm: 1) the employer’s examination of the documents identified in List A OR under List B and List C and presented by the employee; (2) that the documents appear to be genuine and related to the named employee; and (3) to the best of the employer’s knowledge, the employee is authorized to work in the United States

List of Acceptable Documents

  • Clarifies further that a restricted social security card is not a valid List C document and describes a restricted card as one that states it is (1) not valid for employment; (2) valid for work only with INS authorization; or (3) valid for work only with DHS authorization

An employer must provide each employee with the instructions and List of Acceptable Documents when the employee is completing Form I-9. The employer, however, must retain only the two-page I-9 Form (pages 7 and 8). An employer should not redo existing I-9 Forms for current employees by completing the new I-9 Form. If, however, a current employee has temporary work authorization that is expiring, an employer must re-verify the current employee’s work authorization by using the new (2013) version of the I-9 Form. The employer should clip the existing I-9 Form to the new I-9 Form on which reverification (§ 3) is completed.

After May 7, 2013, employers may no longer use the 2009 version of the I-9 Form for new hires or re-verifications. In the past, Immigration and Customs Enforcement (ICE), a division of DHS, has stated it may fine an employer for failing to use the correct version of the I-9 Form. Therefore, employers should plan to transition to the new version of the Form I-9 no later than May 8, 2013. A good transition plan will include a careful review of the new instructions, I-9 Form, List of Acceptable Documents, and I-9 Handbook before the new I-9 Form is used.

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