March 13, 2013
Minsky, McCormick & Hallagan
On March 8, 2013, USCIS released the much anticipated new two-page Form I-9, Employment Eligibility Verification Form. The form was updated to address the common issues associated with the previous one-page form. The good news is that USCIS has taken many of the concerns of the public in mind with the updated Form I-9. It has simplified various aspects of the form and has provided more guidance in the Instructions and in the Handbook for Employers. However, the Form I-9 will likely continue to cause confusion and frustration. Additionally, completing the form correctly is as important as ever with the increasing number of Form I-9 audits, as discussed in Peggy McCormick’s earlier blog post and her article published in the March 2012 issue of The Federal Lawyer.
It remains to be seen whether this new form will adequately address all of the issues associated with the previous form or create additional issues not contemplated previously. Until then, employers should take some basic precautions:
- Print the two-page form on the front and back of one page so that the form will never be separated.
- Instruct all individuals responsible for completing Forms I-9 to review the updated Instructions, Form, and Handbook for Employers thoroughly before utilizing the new form.
- Provide the employee with the Form I-9, Instructions, and the List of Acceptable documents prior to completion of the Form I-9.
The following are some of the more significant changes to the Form:
- Section 1, which relates to the employee and must be completed by the employee, is located on the first page and Section 2, which relates to the employer and must be completed by an authorized representative of the employer, is located on the second page.
- Section 1 includes optional fields requesting the employee’s telephone number and email address.
- Section 2 contains more lines for List A documents, creating more space to enter passport, I-94, and I-20 information for F-1 students with work authorization.
- Section 2 clearly outlines the employer’s attestations.
- Section 2 provides more space for the employer’s address.
- The List of Acceptable Documents clarifies that an employer CANNOT accept a Social Security card that specifies one of the following as a List C document:
- “Not Valid for Employment”
- “Valid for Work Only With INS Authorization”
- “Valid for Work Only With DHS Authorization”
Additionally, employers should keep the following in mind:
- Employers should begin utilizing the new two-page Form I-9 immediately.
- Employers have the option of utilizing the previous one-page Form I-9 only until May 7, 2013.
- All I-9 re-verifications conducted after May 7, 2013, must utilize Section 3 of the new two-page Form I-9.
- Current employees with a Form I-9 already on file DO NOT need to complete a new Form I-9 merely because of the release of the new two-page version. The Social Security number field in Section 1 is optional, unless the employer is enrolled in E-Verify.
- To prevent discrimination issues, an employer should never specify which documents the employee must present for Form I-9 purposes and should not record multiple List documents (e.g. recording List A, List B, and List C documents).
- The employee should be present when the employer is examining the original documents presented for Form I-9 purposes.
- Ensure that all current employees have a Form I-9 on file and review the rules regarding retention of Forms I-9, which are not altered by the new form.
Minsky, McCormick & Hallagan, P.C., advises employers in formulating and reviewing Form I-9 policies and procedures, conducting internal Form I-9 audits, and responding to government Form I-9 investigations. Our office can be reached at 312-427-6163 or through our contact page.