The Department of Homeland Security (DHS) has issued yet another update to the Form I-9, Employment Eligibility Verification. This new version becomes mandatory for use with new hires and reverifications as of September 18, 2017. This is the thirteenth revision of Form I-9 in the thirty years since the form was first required. The good news for employers is that the 2017 changes are more modest than other recent revisions.
DHS has revised the I-9 instructions in two ways:
DHS has updated the I-9 List of Acceptable Documents by making changes to List C. List C documents show employment authorization.
DHS has updated and reformatted the Handbook for Employers. The Handbook provides guidance for completing Form I-9. It now includes the changes to the I-9 instructions and List of Acceptable Documents. DHS also claims that the updated Handbook is easier to navigate.
Employers should begin using the new Form I-9 on a going forward basis. They should not redo existing I-9 forms. If an employer must reverify an existing Form I-9 on or after September 18, 2017, the employer must reverify on the new Form I-9 (complete section 3 on the 2017 version of Form I-9).
Finally, good I-9 compliance requires good employment practices. Here are two tips to help employers improve their I-9 compliance.
Best Practice – Begin the I-9 Process Early: As we advised in an earlier post, an employer may begin the I-9 process any time after it receives an accepted offer as long as the employer acts consistently. Thus, an employer should ask the new hire to complete section 1 at the beginning of the first day of employment or earlier as long as (a) the employer typically makes the request around the same time in the hiring process and (b) the request is made only after the employer has an accepted offer.
Best Practice – Always use the correct version of Form I-9 and conduct periodic internal I-9 audits to detect and correct deficiencies: Employers should switch to the new version of Form I-9 on or before September 18, 2017. Although DHS could treat the failure to use the correct version of Form I-9 as a technical, rather than a substantive, violation, DHS considers the employer’s overall diligence and care when assessing compliance. Additionally, a recent Presidential Executive Order calls for increased internal enforcement of America’s immigration laws, which include the I-9 regulations. DHS, through its division known as Immigration and Customs Enforcement (ICE), has already commenced several new I-9 inspections in 2017. If fines are assessed, the fines will likely be imposed under the higher penalty framework established in 2016. Employers should prepare by conducting internal I-9 audits to review and correct deficiencies in their I-9 forms. The internal audits should be conducted only by trained staff in conjunction with counsel and be done well before ICE comes knocking.