I-9 forms: It’s still important to stay on top of compliance

Form I-9 has been an onboarding staple in the United States since the Immigration Reform and Control Act of 1986 mandated its usage. An employer must fill out an I-9 form (also known as an Employment Eligibility Verification Form) to confirm identity and employment authorization for each person hired.

While I-9 forms are not filed with the federal government, authorized officials from the U.S. Department of Homeland Security, Department of Labor, or Department of Justice may request to see them. Thus, employers must be ready to produce accurate, complete I-9 forms along with copies of the employee’s appropriate supporting documents that prove identity and legal work status.

Such preparation is particularly important in today’s political climate. Enforcement of employment laws is on the rise as part of an overall emphasis on immigration reform. Employers failing an I-9 audit face hefty fines and other sanctions. Businesses also should be aware of the need to retain and store I-9 forms for three years after an employee’s date of hire or for one year after employment is terminated (whichever is later).

Most human resource professionals are quite familiar with the basics of filling out I-9 forms since this paperwork is used so often. They know the information required in each section – including which employee-provided documents constitute suitable proof in the eyes of the government – and know to proofread the completed form for accuracy before filing in company records. If questions arise, they turn to Handbook for Employers M-274 for guidance.

From time to time, however, U.S. Citizenship and Immigration Services (USCIS) makes alterations to procedures and/or the form itself. Here are some recent I-9 changes worth noting:

Use of the new I-9 form is now mandatory

The most current version of Form I-9 is dated 10/21/2019. For a few months, USCIS permitted usage of either this edition or the previous one (dated 07/17/2017). On May 1, 2020, all employers became required to switch to the latest I-9 form going forward for all new hires and for re-verification of current employees with expiring employment authorization documents. (Do not do an overhaul of your files and fill out a new edition of the I-9 for existing employees who do not require re-verification.)

Employers can find the edition date at the bottom of the page on the form and instructions. As the new version of the paper form has no changes from the prior one, checking the date is the only way to tell which edition you are using.

On the fillable PDF version, the newest I-9 revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to reflect name changes relating to North Macedonia and Eswatini.

The instructions for Section 2 of the I-9 form added an important clarification

This section involves actually examining the documents an employee brings in for review and verification within three days of the individual’s first day of employment. Who is lawfully able to do this task is now spelled out in clearer language in the instructions:

You may designate an authorized representative to act on your behalf to complete Section 2. An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf.

This flexibility helps in situations such as when a company is hiring a remote worker and does not have someone who lives in the area to perform the inspection. A notary public or other type of person trusted by the employer can step in to fill in Section 2. However, organizations need to choose wisely because employers assume responsibility for the actions of their designated representative.

A few other minor instructional changes were made to the new I-9

• Employers no longer need to write N/A in the identity document columns not being used. For instance, after recording the presentation of an acceptable U.S. passport in the List A column, the inspector does not need to write N/A in all of the fields in the List B and C columns.
• Clarification is made that a worker’s Employment Authorization Document (EAD, Form I-766) is a List A document, not a List C selection.
• The section on how to order USCIS paper forms now also includes information on where to request them via the web (https://www.uscis.gov/forms/forms-by-mail) in addition to phone order options.
• The USCIS Privacy Act Statement is now called the DHS (Department of Homeland Security) Privacy Notice. It has been updated, with most clarifications and expansions coming to the “purpose” and “disclosure” sections.

DHS has temporarily altered a key I-9 compliance requirement due to the pandemic

The COVID-19 crisis has led many businesses to operate remotely in order to keep employees safe. Realizing the difficulty this situation presents to employers who do not have someone on-site to physically examine a new employee’s proof of identity and work status, the DHS issued a statement regarding I-9 forms on March 19, 2020:

Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.

DHS has extended the length of this accommodation several times due to the ongoing nature of the COVID-19 pandemic. At the moment, the expiration date is set for September 19. Affected HR departments may want to monitor USCIS COVID-related news releases for further developments.

Also, since more companies are slowly but surely returning to on-site operations, remember that this policy only applies to workplaces that are operating remotely. No exceptions to the I-9 physical inspection procedure are made if there are employees physically present at a workplace.