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New I-9 Forms for the Entire Workforce?

It’s been nearly 3 years since the Federal Acquisition Regulations (FAR) Amendments of 2009 mandating the use of E-Verify by federal contractors went into effect in September. Today’s blog revisits this topic to get a feel of how the amendments have impacted U.S. federal contract employers. One of the biggest concerns in 2009 by U.S. employers was whether or not to create a new I-9 Form for their entire workforce or for a sliver of their workforce that were actively assigned to work on a federally contracted project. For larger organizations, the prospect of having to complete new I-9 Forms for a workforce of thousands of employees was daunting and very costly.


Our guest attorney Aimee Clark Todd, Of Counsel at Troutman Sanders LLP, wrote an article in August 2010 about the rising concerns of employers affected by the FAR amendments. Organizations would need to earmark time for employees and HR team members to create thousands of new I-9 Forms, time to train HR managers on how to properly complete the Forms, as well as time to negotiate with the collective bargaining units where workers were unionized. Today, Ms. Clark Todd explains that for large organizations (think Fortune 500 types), completing I-9 Forms for the entire workforce makes sense in two major instances:

The decision to complete new I-9s for the entire workforce comes up most often with larger FAR employers that have complex or multi-layered government contracts, as it is too time-consuming to identify which individual employees are working pursuant to the federal contract

In addition, employers whose entire workforce is working pursuant to the federal contract may decide to complete new I-9s for all employees, rather than spending resources to identify which I-9 forms are compliant with the E-Verify process and which forms need to be updated.

According to Ms. Clark Todd, the other alternatives to completing thousands of new I-9 Forms would be:

(1) identify and update only those I-9s that are not compliant with the E-Verify process; or

(2) identify and complete new I-9s only for existing employees who will be assigned to the contract.

No matter the options, employers should conduct their due diligence and weigh the risks associated with each option. Indeed, Bruce Buchanan, Attorney at Siskind Susser, P.C., and former Senior Trial Specialist for the National Labor Relations Board for 20 years, agrees and warns:

If your due diligence showed (and hopefully you conducted it) that the old I-9 Forms were fraught with errors and suspect work-authorization documents, a company under the FAR clause would want to create new I-9 Forms. A consideration must be the volume of new I-9s that will be needed. If due diligence shows the number of I-9 Forms is massive and the I-9 Forms are not filled with errors, then you may not want to get all new I-9 Forms. The more due diligence conducted, the easier this decision becomes.


One of the common misconceptions about completing new I-9 Forms is that by doing so, the newly completed I-9 Form will remediate past errors on the previous I-9 Form. This assumption could be true if the newly completed I-9 Form was completed correctly and if the errors on the previous I-9 Form were technical (paperwork) errors that could be remediated. However, our longtime readers will know that seldom is the issue of “auditing” I-9 Forms so black and white.



About the Author

Aimee Clark Todd is Of Counsel at Troutman Sanders LLP. She focuses on business immigration for companies in the biotechnology, engineering, hospitality, science and technology industries, colleges and universities, as well as retail establishments.

Bruce Buchanan is an Attorney at Siskind Susser, P.C. He is a frequent speaker at seminars on a variety of topics, including Immigration Compliance, Immigration Law, the National Labor Relations Act, FMLA, and Fair Labor Standards Act. He has authored numerous articles in magazines and on-line publications in the areas of immigration law, NLRB decisions, and pending federal legislation.

Human Resources Today