The Department of Homeland Security (DHS) has issued yet another update to the Form I-9, Employment Eligibility Verification. This new version becomes mandatory for use with new hires and reverifications as of September 18, 2017. This is the thirteenth revision of Form I-9 in the thirty years since the form was first required. The good news for employers is that the 2017 changes are more modest than other recent revisions.
DHS has revised the I-9 instructions in two ways:
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First, DHS has modified its description of when section 1 of Form I-9 must be completed. Section 1 is where new employees certify under penalty of perjury that they are authorized to work lawfully in the United States. The I-9 instructions previously stated that “[s]ection 1 must be completed no later than the end of the employee’s first day of employment.” The revised instructions describe the time period as “no later than the employee’s first day of employment.” It is unclear why DHS made this change (i.e., deleted “the end of”). The I-9 regulations require that a new hire complete and sign section 1 “at the time of hire.” A “hire” occurs at the “actual commencement of employment for wages or other remuneration.” Thus, under a very strict interpretation of these rules, section 1 must be completed early in the first day of employment. DHS has not yet responded to requests that it explain this change to the instructions. DHS also has not said whether the employer must be concerned as to when on the first day of employment section 1 is completed.
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Second, the instructions now state the new name of the government office that enforces the I-9 antidiscrimination rules. Instead of referring to the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), the instructions refer to the DOJ’s Immigrant and Employee Rights Section (IRE).
DHS has updated the I-9 List of Acceptable Documents by making changes to List C. List C documents show employment authorization.
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DHS has consolidated the Department of State’s various forms of the Certification of Birth under the same entry (List C, item 2). DHS also has renumbered the items under List C. Only the unrestricted social security card (item 1) retains the same number.
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DHS has added the most recent version of the Department of State’s Certification of Birth Abroad (Form FS-240, Consular Report of Birth Abroad) to List C. This addition to List C is overdue. Form FS-240 is the most current version of the Certification of Birth Abroad, but until now, an employer could not accept this document for I-9 compliance.
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For employers that use E-Verify, the system has been updated to allow an employer to select Form FS-240 during the case inquiry following I-9 completion.
DHS has updated and reformatted the Handbook for Employers. The Handbook provides guidance for completing Form I-9. It now includes the changes to the I-9 instructions and List of Acceptable Documents. DHS also claims that the updated Handbook is easier to navigate.
Employers should begin using the new Form I-9 on a going forward basis. They should not redo existing I-9 forms. If an employer must reverify an existing Form I-9 on or after September 18, 2017, the employer must reverify on the new Form I-9 (complete section 3 on the 2017 version of Form I-9).
Finally, good I-9 compliance requires good employment practices. Here are two tips to help employers improve their I-9 compliance.
Best Practice – Begin the I-9 Process Early: As we advised that an employer may begin the I-9 process any time after it receives an accepted offer as long as the employer acts consistently. Thus, an employer should ask the new hire to complete section 1 at the beginning of the first day of employment or earlier as long as (a) the employer typically makes the request around the same time in the hiring process and (b) the request is made only after the employer has an accepted offer.
Best Practice – Always use the correct version of Form I-9 and conduct periodic internal I-9 audits to detect and correct deficiencies: Employers should switch to the new version of Form I-9 on or before September 18, 2017. Although DHS could treat the failure to use the correct version of Form I-9 as a technical, rather than a substantive, violation, DHS considers the employer’s overall diligence and care when assessing compliance. Additionally, a recent Presidential Executive Order calls for increased internal enforcement of America’s immigration laws, which include the I-9 regulations. DHS, through its division known as Immigration and Customs Enforcement (ICE), has already commenced several new I-9 inspections in 2017. If fines are assessed, the fines will likely be imposed under the higher penalty framework established in 2016. Employers should prepare by conducting internal I-9 audits to review and correct deficiencies in their I-9 forms. The internal audits should be conducted only by trained staff in conjunction with counsel and be done well before ICE comes knocking.
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