On January 31, 2020, USCIS issued a new version of the Form I-9. All employers must use the new I-9 form by April 30, 2020.
The newest version of the Form I-9 is dated 10/21/2019 in the bottom left corner, with the expiration date of 10/31/2022 in the top left. Employers can use either the 074/17/17 or the 10/21/2019 Form I-9 through April 30, 2020. After April 30, 2020, only the 10/21/2019 Form I-9 will be valid to complete. Completing an older version of the Form I-9 is considered a technical error and can result in fines if employers have previously been through an I-9 audit with ICE.
Employers are required to complete and maintain a Form I-9 to verify identification and authorization to work in the United States for all employees hired on or after November 6, 1986.
The changes to the new Form I-9 are primarily to the Instructions. Please have the I-9 instructions available to employees. Many companies print the new I-9 instructions and place a stapled copy on the bulletin board of required employment posters so that the instructions are available to employees. It is a good practice to print and have the List A, B and C posted or available to employees so that the employees refer to this list to choose one document from list A or one document from list B and C to present to the employer to complete the I-9 form.
Employers using the paper version of the Form I-9 will not notice any changes, other than to the date of issuance and expiration. On the PDF version of the I-9 with drop down menus, the name of the country of Swaziland was changed to Eswatini.
Among the changes to the Form I-9 instructions is a clarification that a company can designate any person to complete the Form I-9 on behalf of the company, but that the Company remains liable for any violations of the law. This is intended to address the increase in remote employees and clarify that third parties can be a designated company representative or agent.
The instructions have also been updated to specifically state that if the employee presents a List B and List C document, the employer should not enter document information into List A. Over-documentation, which is recording more documents than required on the Form I-9, is considered a discriminatory practice under the anti-discrimination provisions of IRCA and the revised instructions are intended to help reduce over-documentation. Violations of document abuse leads to penalties.
Under the Trump Administration, the number of worksite enforcement audits has increased, with approximately 6,000 audits in FY 2018 and an additional 6,000 in FY 2019. ICE has stated that they intend to continue this record number of I-9 audits. Employers should take steps to ensure that they are prepared for an I-9 audit. Companies should be completing internal I-9 and E-Verify training regularly, conducting internal audits and ensuring immigration compliance is occurring at their companies.
Employers should ensure that the company has a fully complete Form I-9 for every employee hired after November 6, 1986. Employers who use E-Verify should also ensure that they are properly completing E-Verify, discussing any tentative non-confirmation with the employee, keeping the signed Further Action Notices, and following proper procedures. Gammage & Burnham offers a wide array of legal services involving the Form I-9, E-Verify, immigration compliance, audits, and employment law issues including training employers to understand their immigration compliance obligations, while avoiding harassment, discrimination, and retaliation.
Julie A. Pace, David A. Selden, and Heidi Nunn-Gilman are attorneys at Gammage & Burnham. Julie Pace’s practice handles employment law, handbooks, drug and alcohol policies, I-9 and E-Verify compliance, OSHA, independent contractor and alleged misclassification issues with DES and other government agencies, and defends claims of sexual harassment, employment discrimination, retaliation, whistleblower, and wrongful discharge, and against charges by the EEOC or ACRD. Dave Selden’s practice focuses on defending employers in employment and commercial litigation relating to the full range of employment issues, including but not limited to wrongful termination, non-competes, independent contractor and alleged misclassification issues with DES and other government agencies, defends claims of sexual harassment, employment discrimination, retaliation, whistleblower, and breach of fiduciary duties, and against charges by the EEOC or ACRD. Heidi Nunn-Gilman’s practice focuses on employment litigation and human resource matters. She advises clients on matters relating to labor and employment law, including I-9 and immigration compliance strategies, E-Verify, ICE and worksite enforcement, EEOC, Title VII, FLSA, FMLA, ADA, drug and alcohol, NLRB, wrongful discharge, non-competition and confidentiality agreements, wage and hour laws/DOL for both public and private employers, paid sick leave, employee handbooks, and executive agreements.