HR Tip of the Week

HR Tip of the Week

New I-9 Form Required: What You Need to Know

All employers must complete and retain a Form I-9 for each employee at the time of hire. The form is used to verify a new hire's identity and work authorization. In November 2016, the U.S. Citizenship and Immigration Services (USCIS) released a revised version of the I-9. The new version includes several changes designed to reduce errors and make it easier for employers to complete it. Below we provide answers to some frequently asked questions about the new I-9.

Q: When must employers begin using the new version of the I-9?

A: Employers must begin using the new version by January 22, 2017. In the meantime, employers have the option of using the outgoing version.

Q: How can I tell which version is the new one?

A: One way is to look at the dates of the forms. The new version is dated 11/14/2016 N. The outgoing version is dated 03/08/2013 N.

Q: I understand that I need to use the new version for all employees hired on or after January 22, 2017. Are there any other situations in which the new version will need to be used?

A: Yes. There are some additional situations in which the new version must be used, including but not limited to:

  • When re-verifying an employee on or after January 22, 2017 because his or her work authorization is expiring and an outdated version of the I-9 was used at the time of hire (in such cases, you must complete Section 3 of the new I-9 and attach it to the employee's original I-9).
  • If you discover on or after January 22, 2017 that an I-9 was never completed or it is missing for an employee.

See the USCIS's Employer's Handbook for more information.

Q: Do I need to have all my existing employees complete the new version of the I-9?

A: No. Employers shouldn't complete a new I-9 for existing employees unless they have sufficient justification (such as when they must re-verify an employee because his or her work authorization is expiring and the form they used at the time is no longer valid). Without sufficient justification, requiring an existing employee to complete a new I-9 may raise discrimination concerns.

Q: What if an employer mistakenly uses the old version for a new hire on or after January 22, 2017, are there any guidelines to correct it?

A: The USCIS has previously issued guidelines for correcting I-9 mistakes. Those guidelines say that if an employer discovers that the wrong version of the I-9 was completed at the time of hire, but the documentation presented was acceptable under the rules in place at the time, the employer may:

  • Staple the outdated completed form to a blank copy of the current version; and
  • Sign the current blank version and note why the current blank version is attached (such as, wrong edition used at time of hire).

Q: How long after hiring a new employee do we have to complete the I-9? Has this timeframe changed?

A: The timeframe remains the same:

  • Section 1, which requires the employee to attest that he or she is authorized to work in the United States, must be completed by the end of the employee's first day of work for pay.
  • Section 2 must be completed by the employer within three business days. For example, if an employee begins work on a Monday, Section 2 must be completed by Thursday. It requires the employee to present certain documents that demonstrate their identity and work authorization. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and to relate to the employee. The employer must record the document information in Section 2.

Q: Can I require new hires to present certain documents from the I-9 form's list of acceptable documents?

A: No. The employer may not require the employee to present certain documents in order to verify employment eligibility. The employee has the right to choose which documents to present, provided they are on the I-9's List of Acceptable Documents (see the last page of the form).

Q: Am I required to photocopy an employee's I-9 documentation?

A: In general, there is no requirement for employers to make photocopies of the documentation provided by an employee to establish his or her identity and work authorization. However, if you do retain copies, you must do so consistently for all new hires. Photocopies should be kept with the employee's I-9 form.

Note: If you participate in E-Verify and the employee presents a document used as part of Photo Matching (currently the U.S. passport and passport card, Form I-551, and Form I-766), you must retain a photocopy of the document.

Q: What do I do when an employee's employment authorization expires?

A: To continue to employ an individual whose employment authorization has expired, you will need to re-verify the employee by completing Section 3 of the I-9 form (on or after January 22, 2017, you must complete Section 3 of the new I-9 and attach it to the employee's original I-9). Re-verification must occur no later than the date that employment authorization expires. To avoid any breaks in service, you may want to establish a calendar call-up system for employees whose employment authorization will expire and provide the employee with at least 90 days' notice.

During the re-verification process, the employee must present a document from either List A or List C that shows either an extension of his or her initial employment authorization or new employment authorization. You must review this document and, if it reasonably appears to be genuine and to relate to the employee, enter the document title, number, and expiration date (if any) in Section 3 and sign in the appropriate space. Note: You may not re-verify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

Q: How long must I retain I-9s?

A: Employers must retain I-9 forms for at least three years, or for one year following the employee's separation from the company, whichever is later. It is a best practice to store all I-9 forms together in one file since they must be produced promptly following an official government request.

Conclusion:

Make sure you use the new version of the I-9 by January 22, 2017, and complete and retain the form in accordance with the law.

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