On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately, all NEW hires by U.S. employers should fill out the new version of Form I-9, which is identified in the lower, left-hand corner of the form with the label “Form I-9 03/08/13 N”. Starting May 8, 2013, use of the new version of the form is mandatory.
U.S. employers need to know the following about the new Form I-9:
Other Resources. Anyone involved with a company’s I-9 process should also have access to the updated Handbook for Employers: Guidance for Completing Form I-9 (Employment Verification Form) and USCIS’s online resource for employers called I-9 Central. These and the official instructions are excellent resources that should be consulted often to ensure compliance.
Only for New Hires. Do not require current employees for whom there is already a properly completed Form I-9 on file to complete the new Form I-9. Doing so could violate the antidiscrimination laws.
Retention Requirements. The employer is required to retain only pages 7-8, which are the pages of the form on which the employee and employer enter data. If copies of the documentation presented by the employee are made, those copies must also be kept with the forms. The employer must have a properly completed Form I-9 for every current employee who was hired after November 6, 1986. Once that individual’s employment ends, the employer must retain the form and, if applicable, copies of the supporting documents for 3 years after the date of hire or 1 year after the date of termination, whichever is later. We strongly recommend that employers implement a method for tracking these dates and that it dispose of these records as soon as permitted.
Photocopies. Making photocopies of the supporting documents is no substitute for the employer properly completing Section 2 and it certainly cannot take the place of completing Form I-9. The single most important protection a company can have against a claim that it has knowingly hired an undocumented worker is to have a properly completed Form I-9 for each one of its employees hired after November 6, 1986.
E-Verify. Similarly, even if a company uses E-Verify, it must still have a properly completed Form I-9 for its current employees.
Potential Penalties. A company who fails to use the new version of Form I-9, to ensure that its employee properly completes Section 1, or to properly complete Sections 2 or 3 of the new Form I-9 is subject to civil fines ranging from $110 to $1100 per form. The United States government is aggressively checking compliance through worksite audits conducted by field agents and forensic auditors. All employers should internally audit and assess their compliance utilizing the services of an attorney who has experience conducting such audits.