Employers beware of Form I-9 changes

How to avoid potential pitfalls in filling out the new document

Since May 7, all employers have been required to use the new two-page Form I-9. Employers that are not using the latest version of the form must immediately start using it or risk sanctions if audited by the federal Immigration Customs and Enforcement agency.

The release of the new Form I-9 (available, free of charge, at uscis.gov/I-9Central.) and its guidance have given rise to employer concerns about completing it. As always, all employers should strive for full compliance, as the number of audits continues to climb, and in 2012 resulting fines from non-compliance totaled over $10 million.

 • Beware auto-completion: Companies that use an electronic Form I-9 program may not auto-complete Section 1 of the form for the employee. With limited exception, it must be completed and signed (electronic signatures are acceptable if done properly) by the employee. This means that employers cannot complete the employee section of the form, even if it also completes the Preparer and/or Translator Certification to show it was not completed by the employee. The Preparer and/or Translator Certification is only to be used when the employee cannot complete the form because of a language barrier, age, or a disability. Many electronic form programs complete this section automatically, so employers should consider changes in the form preparation procedure to avoid running afoul of the requirements.

 • Re-verification: When an employer re-verifies employment authorization for an employee, the government requires re-verification using the new Form I-9. Do not re-verify on the originally completed form, even if there is space to do so. Once you have re-verified, attach the new form to the original form and maintain the forms as per the regulations.

In addition, when you give an employee the form to complete, you must provide the employee with the entire Form I-9 (all nine pages, including the instructions).

 • Non-required information: Section 1 of Form I-9 now has boxes for the employee’s telephone number and email address. These boxes are optional, as is the box for the employee Social Security number. Unless an employer participates in E-Verify, employees are not required to fill in the Social Security box nor are they required to produce a Social Security card to complete the I-9 (and employers may not require employees to do so).

If the employee does not wish to provide the requested information, he or she must complete those boxes using “N/A.” The guidance from ICE is to use “N/A” in every box that is not completed with requested information.

 • No more I-94: Employees will no longer receive I-94 cards when they enter the United States by sea or air. For employers with employees on work visas, such as an H or L visa, it was the I-94 card that gave the date certain when an employee’s status expires and is no longer eligible to work. Now, when employees enter the United States by sea or air, they get an admission stamp in their passport. In order to verify employment authorization or immigration status, the employee must now go to cbp.gov/I94 and obtain the admission record number or other information. The I-94 card and valid passport with visa stamp will serve as a List A document.

 • Social Security card: An updated list is now explicit as to when a Social Security card may be used as a List C document. It can be used unless the card includes one of the following restrictions: not valid for employment; valid for work only with INS authorization; or valid for work only with DHS authorization. Although this has long been the rule, it was never so explicitly set forth. Be vigilant and check further if a Social Security card with any of the above is written.

It is important for employers to become familiar with the new form, the new requirements and the list of acceptable documents. Although the list does not appear to be significantly different, there are important changes that employers must know.

Company employees charged with completing I-9s should understand that they cannot require an employee to produce any specific document. The selection of document to use for I-9 purposes is the choice of the employee, and requiring a specific document may lead to discrimination claims.

Mona T. Movafaghi, chair of the Immigration Practice Group at Drummond Woodsum in Portsmouth, can be reached through www.dwmlaw.com.

Categories: Legal Advice