Employment Law Blog

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Mar 08, 2013

Alert: Revised I-9 form is now available and will be mandatory effective May 7, 2013

Wage and Hour 

A new version of Form I-9 is now available and will be mandatory effective May 7, 2013. The U.S. Citizenship and Immigration Services (USCIS) clarified the instructions and expanded the form itself to two pages.http://www.uscis.gov/portal/site/uscis

A new version of Form I-9 is now available and will be mandatory effective May 7, 2013. The U.S. Citizenship and Immigration Services (USCIS) clarified the instructions and expanded the form itself to two pages. The additional guidance and new layout is intended to reduce confusion for employers and workers. The revision date on the new form (now found in the lower left corner) is 03/08/13. Here are the highlights of the changes:

As before, new hires must complete Section 1 of the form (employee information and attestation) no later than the first day of employment. The revised form includes new fields for the employee’s email address and telephone number, which are optional. The field for the Social Security Number is also optional, unless you as an employer participate in E-Verify.
You should warn new hires that if they are aliens, they will need to have certain immigration numbers available on their first day of hire. The reason is that Section 1 requires aliens to provide their Alien Registration Number/USCIS Number or their Form I-94 Admission Number. The revised form now also requests aliens to provide their foreign passport number and country of issuance if they obtained their Form I-94 admission number from U.S. Customs and Border Protection (CBP). For example, you might say: “We are required by law to verify your identity and eligibility to work. On your first day of work, you must complete Section 1 of Form I-9. If you are an alien (i.e., not a U.S. citizen on noncitizen national of the U.S.), then you will need to know your Alien Registration Number/USCIS Number or your Form I-94 Admission Number. If you obtained your Form I-94 Admission Number from U.S. Customs and Border Protection, then you will also need to know your foreign passport number and country of issuance.”
Within three business days after the first day of employment, the employee still must present acceptable documents to verify identity and employment authorization, so you as the employer can complete Section 2 of the form (employer or authorized representative review and verification). The new instructions include an example: If the employee’s first day of work is Monday, then Section 2 must be completed no later than Thursday. However, if the length of employment will be three days or less, then both Sections 1 and 2 must be completed no later than the first day of employment.
As before, you must allow the employee the choice of which documents to present: One document from List A, or else one from List B and one from List C. The revised form more clearly explains the requirements for category #5 on List A (nonimmigrant alien authorized to work for a specific employer because of his or her status). It also clarifies that a Social Security card can’t be used for List C if it says “not valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”
The new instructions carefully explain the limited circumstances under which an employer may accept a receipt in lieu of the document itself, and how to update the form once the actual document is provided.
Prior versions of Form I-9, containing revision dates of 08/07/09 or 02/02/09, can no longer be used as of May 7, 2013. You may begin using the new form immediately. The USCIS is in the process of updating its Handbook for Employers in light of the changes.
For your existing Forms I-9 on file for current employees, you don’t need to take any action. But if you need to reverify a worker’s employment authorization when their current documents expire, then you should use the new form, even if you’re only completing Section 3 and attaching it to the old form. Keep in mind that even though documents must be unexpired when the Form I-9 is completed, you don’t need to reverify the employment authorization of U.S. citizens and noncitizen nationals, or lawful permanent residents who presented a permanent resident card (Form I-551, also called a “green card”).
We recommend that you periodically self-audit your Forms I-9 to ensure compliance. If you have questions or aren’t sure what to look for, talk with your Vigilant staff representative. For an overview of the I-9 process, see our Legal Guide, “At a Glance: Form I-9” (5486).

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