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New Form I-9: But You Still Need To Know The Basics

The long-anticipated, newly revised Form I-9 was released on November 14, 2016.  This new form replaces the Form I-9 that was issued on March 8, 2013 with an expiration date of March 31, 2016.  As with previous new versions of the Form I-9, there is a grace period before companies must begin using the new version.  This time the grace period is longer than usual—companies have until January 22, 2017, before they must begin using the new version of Form I-9.

Prior to issuance of the recently revised Form I-9, significant increases to fines were announced on August 1, 2016 for Form I-9 violations. Although the new form has some changes, overall the new form looks very similar to the previous Form I-9.  Before we delve in to what has changed, companies should know and keep in mind that the compliance basics of Form I-9 have not changed.

To avoid incurring the newly raised fines, being proactive is key!  When PMP conducts an I-9 audit for companies, certain areas are traditionally the most problematic and can trigger high fines should the U.S. Immigration and Customs Enforcement (ICE) come knocking at the door.  So….before implementing the new Form I-9, employers should seize this opportunity to conduct a self-audit of your current forms and practices to assure that everyone authorized to handle these forms has been properly trained.  Bear in mind that, to be effective in discovering errors, a self-audit should only be conducted by a knowledgeable person other than the person that usually completes Section 2 for the company.  As a certified IMAGE Business Partner with ICE, PMP can not only conduct the mock audit but also train your staff on best practices to avoid errors in the future.

When completing the Form I-9 or conducting a self-audit, the following 10 items should always be kept in mind:

  1. Section 1: must be completed and signed by the employee no later than the first day of employment;

  2. Section 2: must be completed by HR or an authorized company representative no later than the 3rd day after the first day of employment;

  3. For Section 2: company must review original and unexpired documents at the time they complete this section;

  4. Employer must not ask the employee for any specific documents. Employee should be given the list of acceptable documents and the employee must choose either 1 from Column A or 1 from Column B plus 1 from Column C;

  5. Photocopying the documentation is voluntary except for the E-Verify exceptions – just remember that too much documentation is still a big No-No;

  6. The documentation portion of Section 2 must be correctly and fully completed (issuing authority, document number, expiration date—as applicable). Making photocopies of the documents does not take the place of correctly completing this area;

  7. Never, ever use correction fluid (i.e., White-Out) on any part of Form I-9;

  8. Original I-9s must be maintained for all current employees hired after November 16, 1986;

  9. Forms for separated employees should be kept in a separate file. These forms must be retained for either three years from date of hire or one year from the employee’s last date of employment—whichever is later.  (Contact PMP for a free copy of the retention sheet information.)

  10. Although there is a Spanish-language version of Form I-9 available, it is available only as a translation tool — unless the employee is located in Puerto Rico, in which case the Spanish-language form may be used to satisfy I-9 requirements.Now, let’s discuss some of the changes in the new Form I-9.  One of the most obvious changes is that the instructions went from 7 pages to 15 pages. A lot of “stuff” to read for a 2-page form!The new form has been issued in both conventional (printable, hard-copy) and “smart” form versions.  However, although the smart form version can be completed on the computer (with Adobe Acrobat), it must be printed out, hand-signed and retained in a separate file as previous I-9s.  Although it is “smart” — it’s not that smart!  It won’t catch typing errors or errors in dates. You still need to review the information for accuracy.  YOU are ultimately responsible for errors found during an ICE audit.

Although this article cannot detail all of the changes in the new I-9, below are a few notable ones:

Section 1: To be completed by employee

  1. The employee must indicate (by checking one of two boxes) whether a preparer and/or translator assisted them with the completion of this section, including someone from the company’s HR department. If anyone assisted the employee, that person must then complete this part of Section 1.  The smart form allows for multiple boxes to be completed if needed; for the hard copy, this can become a third page to the form if multiple persons assisted.

  2. Almost all fields not containing information will now require that “N/A” be shown (going forward you can receive violations if N/A is not entered).

Section 2: To be completed by employer

  1. In addition to a more visible area for the employee’s name at the top of page 2, employers must now fill in the employee’s “Citizenship/Immigration Status.”

  2. Smart form has drop-downs for document selections. Reminder: if document number or expiration date is not applicable, you must enter “N/A” on that line

  3. New Field/Box: “Additional Information” will can be used to note TPS extensions**, employee termination and form retention dates or other notations on visas, etc. that the employer may need.

  4. Instructions reworded to identify the person who physically examines the documents and completes Section 2 – this person must sign his/her name.

Section 3: Reverification and Rehires

  1. Reverification does not apply to List B documents or U.S. citizens, noncitizen nationals, or lawful permanent residents who present a Permanent Resident Card.

  2. If you rehire an employee within three years from date that the Form I-9 was previously executed, the employee does not need to provide any additional documentation—unless the employment authorization has since expired

  3. If Section 3 had been previously used for reverification but you rehire the employee within the three years, you may complete Section 3 on a new Form I-9 and attach to current form.

This is not an exhaustive listing of the changes.  For any additional information on the new Form I-9 or to schedule a mock I-9 audit, please contact PMP.  To print out a copy of the instructions or new Form I-9, click here.

Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding the new form I-9. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding compliance.

This article is intended for general information only and should not be construed as legal advice.

**Temporary Protected Status (TPS): On September 22, 2016, The Department of Homeland Security (DHS) announced the decision that conditions in Guinea, Liberia, and Sierra Leone no longer support their designations for TPS. Guinea under the current designation for 6 months for the purpose of orderly transition before the TPS designation of Guinea terminates. The termination will become effective May 21, 2017.  To provide for an orderly transition, nationals of Guinea, Liberia, and Sierra Leone (and individuals having no nationality who last habitually resided in Guinea Liberia, and Sierra Leone) who have been granted TPS under the Guinea, Liberia, and Sierra Leone designation will automatically retain their TPS and have their current Employment Authorization Documents (EAD) extended through May 20, 2017.  USCIS has automatically extended the validity of employment authorization documents (EADs) issued under the designation of TPS Guinea for an additional 6 months, through May 20, 2017.  After that date, individuals from these countries with TPS/EAD will no longer be eligible to work in the United States.   It is important to note that although these individuals are no longer qualified to work in the United States under a TPS as of the effective dates, they may still be qualified to work under additional immigration statuses they may have acquired while in the country.

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