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Employers Required to Use New Form I-9‎

March 11, 2013

Overview

On March 8, 2013, U.S. Citizenship and Immigration Service ("USCIS") announced that a new Form I-9, Employment Eligibility Verification Form, is now available for use (Rev. 03/08/13, expiration date 03/31/2016). The current version of the Form I-9 may be used until May 7, 2013, but employers are encouraged to begin using the new form right away. Here are links to the official USCIS Press Release, announcement in the Federal Register, and the new Form I-9.

With the announcement of the new Form I-9 today, USCIS also announced that it is hosting a stakeholder's teleconference on Monday, March 11, 2013, at 11am Pacific/2pm Eastern time to discuss and answer questions about the form revisions. Anyone may participate by calling 1-888-469-1753 (note that an earlier USCIS press release had a different but incorrect number to dial in). The passcode is "I-9". USCIS recommends calling in 20 minutes before the start.

Since 1986, employers have been required to fill out a Form I-9 for all new hires. Although the latest version of the form includes a number of new features, fields and extensively expanded instructions, there are no significant material changes to the form or I-9 process. The form itself has grown from two to three pages and the instructions from three to six. Notable changes to the form and instructions include:

• Section 1 of the Form I-9 now requests the telephone number and email address of the employee. According to the form's instructions, this additional information is "optional" and "may" be provided by the employee. The form's instructions also state that DHS may contact the employee if "DHS learns of a potential mismatch between the information provided and the information in DHS or Social Security Administration records." Interestingly, although the instructions state that the additional information is optional, the two new fields on Form I-9 could mislead new hires who fail to carefully review the form's instructions. Because Form I-9 is not currently submitted to DHS except in the event of an I-9 audit, it would appear that DHS intends to use this additional information only for the purpose of I-9 enforcement. The general rule is that Form I-9 must be filled out completely and correctly. Required fields that are left blank by either the employer or employee may subject the employer to fines or other penalties in the event of an audit. Because the instructions to the new Form I-9 explicitly state that these two fields are optional and may be filled out at the discretion of the employee, it is assumed that DHS will not penalize employers if an employee chooses not to provide the information. Employees who choose not to provide their email address and/or telephone number should write "N/A." Inevitably employers will be asked by new hires whether they should provide the information or not. Employers should not advise the new hire one way or the other. Instead, simply explain that the information is optional and the employee is free to choose whether to provide it (in the same way employees are free to choose which documents to present as evidence of their identity and work authorization).

• Section 1 of Form I-9 now requests "other names used (if any)" rather than just maiden names. All earlier versions of the form only asked for the maiden name of the employee in addition to his or her full legal name. Now DHS requires "all other names used." The instructions state that if the employee "had no other legal names, write "N/A." This revised field will inevitably lead to confusion since the form itself does not specify other legal names used and the language of the instructions is less than clear. Employees may be tempted to list nicknames or other names used even if not a legal name. Employees must list any other legal name used (including maiden name) and may provide any other name used (including variations of hyphenated last names).

• After 26 years and multiple versions of Form I-9, there is finally a box that clearly indicates where the employee should sign. It was unclear on previous versions of the form where at the bottom of ‎Section 1 the employee should sign. There was a large space above the designated box that employees regularly, though mistakenly, used for their signature. Now there's only one clearly marked box which is significant and commendable progress.

• Reference to Form I-94 has changed in the instructions but not on the Form I-9 itself. Form I-94 is a paper card issued to most foreign nationals who enter the U.S. as nonimmigrants (with some kind of temporary status). It is also issued by USCIS upon the approval of certain applications to change or extend nonimmigrant status. Form I-94 is an official receipt and serves as evidence of the holder's immigration status and period of authorization. As U.S. Department of Homeland Security ("DHS") is planning to phase out Form I-94 in lieu of electronic records, the new I-9 has been updated to anticipate this coming change. The instructions have been updated to refer to "Admission Number" though the form itself still refers to "I-94 Admission Number." They are interchangeable. Eventually, once the paper I-94 is eliminated, nonimmigrants will only have an Admission Number.

• The form itself includes a box that is being reserved for a barcode in future versions. The various agencies under DHS are increasingly moving away from paper forms in favor of electronic filing. The migration process has proceeded with fits and starts. Only time will tell how or when DHS intends implement an electronic/barcoded I-9.

• Additional information is required in Section 1 for employees who indicate that they are a (nonimmigrant) "alien authorized to work" for a specific temporary period of time. If the employee does not have an "Alien Number" or "USCIS Number" (which are normally only issued to Lawful Permanent Residents), he or she must provide their I-94 Admission Number. If the I-94 Admission Number was issued to them upon their arrival in the U.S. by a U.S. Customs and Border Protection ("CBP") Inspecting Officer at the border/airport port of entry, they must also provide their Foreign Passport Number and country of issuance.

• The List A Documents Column in Section 2 has been modified. Nonimmigrants who are temporarily authorized to work may present their Foreign Passport and a Form I-94 that demonstrates their temporary work authorization as a List A document (Item 5 of the List A documents). The new Form I-9 requires employers to write down the name, issuing authority, document number and expiration date of both documents if this is what the employee presents.

• The three additional pages of instructions clarify a number of important rules. The "receipt rule," Monday/Thursday rule," and the Social Security Card rule have all been clarified:

o First, the instructions to the form clarify a rule that has been in place for many years but with unclear instructions. To be clear, receipts may be accepted in lieu of original documents only if the original document was lost, stolen or damaged. Employers may not otherwise accept receipts for applications for temporary work authorization if it is for an initial application or a simple renewal application. The only other acceptable receipts are for new Lawful Permanent Residents who have just entered the U.S. and have not yet been issued their Permanent Resident Card and refugees who only ever receive an I-94 as evidence of their status and employment authorization.

o Second, since the Form I-9 was created in 1986, employees have been required to complete Section 1 no later than their first date of hire (their first day on the job) and employers have been required to verify the employee's ID and work authorization, and complete Section 2 no later than the "three business days" of when employment begins. The instructions helpfully clarify that if the employee commences employment on Monday, Section 1 must be completed by the employee by no later than that day and Section 2 must be completed by the employer by no later than Thursday of the same week (as opposed to Wednesday).

o Finally, List C of Section 2 has been updated and now includes the variations of the language that may appear on a Social Security Card that may NOT be accepted as evidence of employment authorization. Foreign nationals who are not Lawful Permanent Residents or U.S. citizens are issued Social Security Cards that include a disclaimer that they may not be used as evidence of employment authorization. Employers may not accept these Social Security Cards as a List C document. If an employee presents one, he or she should be instructed to present other acceptable evidence instead.

Finally, due to the increased size of Form I-9 (now three pages) and its instructions (now six pages), employers may want to develop a strategy to minimize the administrative burden by re-using the instruction pages or providing the complete form and instructions to new hires electronically.

For additional information about the Form I-9 and employment verification process, refer to USCIS' official I-9 handbook for employers, the M-274 is available for download here: http://www.uscis.gov/files/form/m-274.pdf. Also, USCIS recently created a new "I-9 Central" website which has the latest and regularly updated information about the I-9 Form and process: http://www.uscis.gov/I-9Central. USCIS is also now offering free online seminars for employers. For additional information and a current schedule visit I-9 Central.

The obligation to prepare and retain a Form I-9 for all new hires is not new. Also, the penalties for failing to complete the I-9 process properly and on time are not new. With the release of the new Form I-9, now is a perfect time for employers to conduct a comprehensive audit of their I-9 records. For the past four years, Immigration and Customs Enforcement ("ICE") has increasingly relied on the I-9 audit process as its primary enforcement mechanism. Last year ICE conducted 2,496 audits which resulted in over $10 million in administrative fines for improperly prepared I-9s and 713 workplace arrests including 221 company owners, managers, and HR officials for I-9 related violations. In addition to all I-9 records, ICE is also regularly subpoenaing a wide variety of business and employment records. ICE regularly rejects corrections and changes made to I-9s after receipt of the audit notice.

Don't wait until ICE comes knocking- audit your records now. Schwabe has a robust employment and immigration law practice. Feel free to call us at (503) 222-9981.

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