On November 14, 2016, U.S. Citizenship and Immigration Services (“USCIS”) issued a revised Form I-9 which is required by employers to verify employment authorization.  The old I-9 form with a revision date of March 8, 2013, may only be used until January 21, 2017.  Employers should transition to using the new form as soon as possible.  Immigration & Customs Enforcement (“ICE”) requires use of the new form no later than January 22, 2017.

Employers must maintain an I-9 form on file for every employee on their payroll.  The purpose of the I-9 form is to have the employer establish the employee’s identity and authorization to work in the U.S.

New Form I-9 Changes

The digital version of the revised I-9 form is a welcome change for employers as it is more user friendly and will automatically flag any missing fields.  The new “smart” I-9 may be downloaded at https://www.uscis.gov/i-9.

Some of the new changes include:

1. The three page I-9 form is now separate from the long instructions;

2. Page 2 has a designated space for employers to note additional information regarding any unusual situations, rather than having to write in the margins or attaching a memo;

3. The form checks whether required fields are entered correctly. For example, the form will notify the user of any missing fields, dates that are not inputted in mm/dd/yyyy format, and social security numbers that are missing a digit;

4. Drop-down lists and calendars;

5. The form will automatically populate “N/A” in certain subsequent fields depending on the answers provided;

6. Embedded instructions that pop-up when the cursor hovers over a particular field;

7. Buttons that allow users to access instructions, start the form over, and print; and

8. A QR barcode is propagated once the form is completed and printed to facilitate review by auditors.

It should be noted that the new form is not “electronic I-9 software.”  Employers that do not use digital I-9 software must still print the form and obtain handwritten signatures.  Software vendors providing digital I-9 services will be required to update their Form I-9 and incorporate the new features.  However, the responsibility falls on the employer to ensure that the new digital form is compliant.

General I-9 Tips

On August 1, 2016, USCIS announced a significant increase in fines for I-9 violations.

Here are a few tips to prevent common I-9 errors:

1. Employee Timing:  The employee must fill out Section 1 of the I-9 no later than the first day of employment.  It may be done earlier, but only after an offer of employment has been extended and accepted.

2. Employer Timing:  The employer must complete Section 2 of the I-9 no later than the 4^th day of employment – 3 days after the first day of employment (the so-called “Thursday rule”).

3. Original Documents:  The employer must request and examine the original work authorization documents of the employee.  A photocopy or scanned copy will not suffice.  This means that you cannot verify an employee remotely using digitally scanned or faxed documents.

4. Never Accept Expired Documents from New Hires.  The only exception is a 90 day grace period for new hires that are U.S. Citizens or permanent residents that have already applied for a replacement document – i.e. a replacement of a U.S. passport, state driver’s license, etc.

5. Reverification:  Employers should not re-verify the I-9 of an existing employee who is a U.S. Citizen or permanent resident merely because his/her documents have expired.  However, foreign national workers employed with temporary employment authorization must be carefully tracked and timely re-verified prior to the expiration of their I-94 or work permit.  In certain instances, there is automatic continuing work authorization for a limited period of time for certain foreign nationals who have timely filed for an extension of their work authorization (i.e. TPS, H-1B, L-1, etc.).  Contact counsel before terminating someone in this situation.

6. I-9 Errors:  It is a good idea to periodically audit your I-9s to make sure that you have one on file for every active employee.  In addition, it is important for HR to ensure that all applicable I-9 fields are completed.

7. Retention:  Maintain I-9 records throughout employment and for 3 years after termination.  This is a simplified, but practical version of the retention rule.