The Form I-9 Gets a Make-Over
[Editor’s Note: Today’s article is courtesy of Josie Gonzalez, Managing Partner at Gonzalez & Harris of Pasadena, California.]
With the passage of the Immigration Reform and Control Act, since November 6, 1986, all employers throughout the U.S., small or large, have been obliged to complete a form I-9 to record identity and work authorization documents for every new hire. The government has released six major editions of the I-9 form and on March 8, 2013 it released yet another version as well as a newly minted M-274, Handbook for Employers, Guidance for Completing Form I-9. With this 7th edition, does practice make perfect? Yes and no – you be the judge. This article will describe some of the new features of the I-9, will discuss unresolved questions and, most importantly, will counsel employers to focus on select employer responsibilities. Unless addressed properly, common I-9 violations can result in ICE (Immigration and Customs Enforcement) fines ranging from $110 to $1,100 for each improper completion of the I-9 or fines issued by the Office of Special Counsel for immigration-related discrimination stemming from over documenting the I-9 or improper insistence on specific documents.
Why is the proper completion and maintenance of an I-9 important?
A correctly completed I-9 form is an employer’s affirmative defense to a charge of knowingly employing unauthorized workers. However, if the government can prove that the employer knew that the documents recorded on the I-9 are fraudulent, or if an employer continues to employ someone whose work authorization document has lapsed, the affirmative defense is lost. And, with the availability of E-Verify to screen the legitimacy of documents, ICE will increasingly hold employers to a higher standard and will investigate more thoroughly when it discovers the presence of numerous unauthorized workers.
What are the key features of the new I-9?
1. The I-9 form has been reformatted and expanded. It is now a two page form. Page one must be completed by the new hire and the Preparer or Translator who assisted in the completion of the form; page two must be completed by the employer. The two pages can be reprinted double-sided to avoid losing a page. The instructions are now five pages and the List of Acceptable Documents has changed slightly in format but not in content. Although there is a requirement to provide the worker with the list of documents and instructions, laminating the two pages of employee instructions and the list of acceptable documents for review by the employee should satisfy this obligation.
2. The new form may be used as of its effective date of March 8, 2013, but employers have a grace period and may continue to use the older form (08/07/09Y edition) until May 7, 2013.
(Updated April 9, 2013) Previously, USCIS incorrectly described the effective date of using the new I-9 form as being after May 7, 2013. A correction clarifying that employers may no longer use prior versions of the Form I-9 beginning May 7, 2013 was posted on the Federal Register on April 9, 2013.
3. The I-9 form is available in Spanish for use only in Puerto Rico; however, laminating the Spanish version and providing it as a guide to workers is a good idea.
4. Employee Section One: Still provides four choices to indicate one’s status: 1) U.S. citizen; 2) Non-citizen national; 3) Permanent resident and, 4) Alien authorized to work. However, since employers are held responsible for improper completion of both the employee and employer sections, careful attention must be paid to Section One, particularly the fourth category. Many employers have workforces comprised only of the first and third categories. Employees who are not permanent residents but have temporary work authorization will check the fourth box. Only certain refugees and asylees would check “N/A” for the expiration date; they might present an unrestricted social security card and government ID. However, if they present an Employment Authorization Card (EAD), an expiration date would be recorded. Other categories of employees checking the fourth box include: certain students given work authorization; nationals of certain countries with Temporary Protected Status (TPS); employer-sponsored foreign nationals such as H-1B, L-1, O, TN, J-1 temporary workers; aliens immigrating through family sponsored or other categories who are given EADs with expiration dates. Employer reverifications of temporary work authorization documents prior to expiration is a very important responsibility and must be recorded on the I-9, Section Three.
5. Employer Sections Two and Three: With the exception of reformatting changes in Section Two and adding another box for additional data under List A, the Employer Section Two has not changed. There is additional visual clarity in the reformatting because the four fields of information — Document Title, Issuing Authority, Document Number and Expiration Date — are carried over into columns B and C. Section Three for Reverifications and Rehires has remained the same.
SECTION ONE FAQs
Do I need to complete the new edition of the I-9 for current employees?
No, if one has a properly completed I-9 for current employees, there is no need to complete a new I-9, unless a Section Three reverification is required for employees with expired work authorization documents.
When must the various sections of the I-9 be completed?
Section One must be completed on the first day of employment; Section Two must be completed within 3 business days of the employee’s hire. For example, for the employee hired on a Monday, the I-9 must be completed by Thursday. Exception: It must be completed on the first day of hire for employees hired for fewer than three business days. Section Three must be completed on the date of rehire or, for reverifications, on or before work authorization expires.
Is recording the social security number optional or not?
It is optional but employers who are registered with E-Verify must obtain the social security number in order to conduct the everification which must be done within three days of hire. For employer sponsored foreign nationals who have not yet received their social security card, the I-9 must be timely completed leaving the social security field blank and the employer is allowed to delay the everification until the social security card is received.
Can Section One entries be auto-populated from verifiable employer data bases in the case of electronically prepared I-9s?
At a USCIS teleconference on March 11, 2013, Immigration representatives said repeatedly that section one can’t be auto-populated, even if the employee reviews the Section One I-9 before signing it. This statement conflicts with the common belief that as long as the data is reviewed by the employee and the electronic vendor executes the preparer portion of the I-9, auto-population of the form was acceptable.
SECTION TWO FAQs
If an applicant records an expiration date in Section One but doesn’t present the document that verifies that expiration date, must an employer nevertheless docket that date in order to ensure continued right to work?
Yes. If information is recorded on the I-9 that puts the employer on notice that work authorization is limited, the employer must track that date and follow-up with a request from the applicant for evidence establishing the employee’s continued right to work.
May the busy HR Manager segregate the task of viewing the actual documents from the I-9 completion responsibility?
No. The person that signs the attestation in Section Two must be the same person who views the original of the documents and compares the photo or other identifying information of the employee to establish an “identity” match. If hiring is occurring away from the home office, one can delegate the task of I-9 completion to any third party, who will serve as the employer’s agent.
Can restricted Social Security Cards be used for I-9 purposes?
No. Individuals with temporary work authorization are issued restricted social security cards that indicate: “Not valid without INS/DHS work authorization.” An employer may not accept a restricted social security card as evidence of work authorization for List C.
Must one record the document in Section Two that corresponds to the box checked in Section One? In other words, if an applicant checks the permanent resident box, may one insist on presentation of the resident alien card?
No. One may not insist on seeing specific documents as long as the items presented satisfy the I-9 requirements — any document from List A establishing identity and work authorization; or any document from List B establishing identity and any work authorization document from List C.
Why does List A now contain three entries for the document title, Issuing Authority, Number and Expiration date?
When a foreign passport is presented, one records the titles, numbers and expiration dates of the passport and of any work authorization. Examples of the latter are an I-94 entry number for a work-authorized applicant (e.g. H-1B, TN, E-1/2 or L-1), or an I-551 stamp in the passport, which is temporary proof of permanent residency. In the case of a foreign student, the student’s Form I-20 or DS-2019 number and the program end date listed on these forms must be recorded in the third section.
What is considered the date of hire for Section Two recordation?
If there is an offer and acceptance but the employee has not commenced employment, one can complete the I-9 using that date instead of the actual start date of employment. Temporary staffing agencies may enter the first day the employee was placed in a job pool after an offer of employment and acceptance.
SECTION THREE FAQs
In Section Three, what are the distinctions related to Rehires and Reverifications?
If one is rehiring an employee who originally completed the I-9 within three years, one may use the existing I-9 form for that employee, and in Section Three record any name changes, the rehire date, sign and date; alternatively, one may complete a new I-9. In contrast, if one is reverifying work authorization at the time of rehire and the work authorization date in Section One or Two has expired, Section Three of the most recently issued I-9 must be used; there is no option to use Section Three of the existing I-9 form. Reverifications are crucial. If an employee’s work authorization expires and one fails to record updates, fines may be levied for either knowingly continuing to employ an unauthorized worker or/and failing to properly maintain an I-9. For fear of receiving fines from the Office of Special Counsel, do not reverify: U.S. citizens, permanent residents, asylees with unrestricted work authorization, and List B identity documents such as government IDs.
For Section Three Reverifications, is there ever a grace period to complete the reverification?
Yes, but the grace period only applies to specific types of situations. In general, if work authorization expires, there is no grace period to continue to employ the worker. The exceptions include employees that have Temporary Protected Status for whom the government has provided automatic extensions of work authorization; some employer-sponsored foreign nationals who have an additional 240 days of work authorization if an extension application is pending; foreign students with “cap-gap” and STEM automatic extensions because applications for an H-1B have been filed or extensions for employees working with employers who participate in E-Verify (See page 21, M-274)
MISCELLANEOUS FAQs What I-9 recordation errors will trigger government fines?
No I-9 for employees hired after 11/6/1986 or failure to timely complete an I-9; employee failure to record one’s status; employee and employer failure to record document numbers; failures to sign and date the three sections of the I-9; failing to see original documents (including those of remote hires); accepting documents not on the List of Acceptable Documents; failure to execute the I-9 by the employer who has viewed the documents and compared the original document to the identity of the employee; failing to update expired List A and C documents; failure to complete the translator/preparer section when it is evident by handwriting analysis that Section One and Two were completed by the same individual; over-documenting the I-9 and insistence on presentation of certain documents, such as insisting that foreign “looking or speaking” hires present List A documents, e.g. permanent resident cards, U.S. passports in lieu of List B and C documents.
What is the proper way to correct an I-9?
Section One errors MUST be corrected by the worker and Section Two and Three errors by the employer. The proper way to correct is to line out the error, correct the information, initial and date. Do not white-out or black-out the original information. You may also attach an explanatory memo to the I-9 if needed.
Is it time now to purge I-9s that need not be retained?
With the release of the new I-9, employers should take the opportunity to purge I-9s where the employee is no longer employed and the I-9 was retained for a minimum of three years, including one year after the employee termed.
Gonzalez & Harris, P.C. © Josie Gonzalez is the founder of Gonzalez & Harris, a law firm specializing in representing employers in all aspects of immigration compliance, located in Pasadena, California. She received her JD, undergraduate and master’s degrees from the University of California, Berkeley. She has represented hundreds of employers in ICE I-9 audits and in-house self audits. Josie received the American Immigration Lawyers Association (AILA) Founder’s Award for “the most substantial impact on the field of immigration law or policy.” She has published numerous articles for legal and business journals and is the editor of AILA’s leading treatise, Guide to Worksite Enforcement & Corporate Compliance.