The Department of Homeland Security Citizenship and Immigration Services published a notice in the Federal Register on January 31, 2020, alerting the public to the release and requirement of a new version of the ubiquitous Form I-9, Employment Eligibility Verification document. The new form was available for download and use beginning on that date. We are presently in a 90-day transition time during which employers may use the new form, with a version date of "Rev. 10/21/2019", or the prior version of the form with a version date of "Rev. 07/17/2017N".
The 2017 version will be considered obsolete effective April 30, 2020, and only the latest version – Rev. 10/21/2019 – should be used from that date forward.
The 2019 version of the I-9 is the latest in a long line of iterations of the form first introduced as a result of the Immigration Reform and Control Act of 1986 ("IRCA"). Like its predecessors, the newest Form I-9 contains three sections. Section 1 of the form collects identifying information from and about a new employee and requires the employee to attest to his or her immigration status. Section 2 of the form collects information about the employer and requires the employer to inspect original documents presented by the employee confirming the employee's identity and basis for employment authorization. Section 3 of the form is primarily used for reverification, where applicable.
The latest changes to the form are minor. The form itself is hardly changed at all, except in the version that is filled in online. The list of foreign countries has been updated to reflect name changes relating to North Macedonia and Eswatini. Those changes are only visible when completing the fillable Form I-9 on a computer.
USCIS also updated a number of sections of the instructions to the form. Most significant to employers is the change to clarify who can act as an authorized representative on behalf of an employer in completing Section 2 of the form. Section 2 requires employers or their authorized representative to complete and sign Section 2 within three days of the employee's first day of employment. The person completing Section 2 must physically examine original documents presented by the employee to confirm the employee's identity and employment authorization. When completing Section 2, the employer representative must be physically present in the same room at the same time with the employee whose documents are being examined.
Typically, the person completing Section 2 is an existing employee of the employer, most often someone responsible for Human Resources.
The changes to the form now clarify that an authorized representative of the employer "can be any person you designate to complete and sign the Form I-9 on your behalf." Such designation can be especially helpful in circumstances where an employer is hiring an employee remotely and has no other existing employees in the area of the remote hire to complete Section 2.
For example, if a New England based company is hiring an employee in northern California who will work as a telecommuter, it might be advantageous for the New England employer to designate a recruiter, an HR consultant, a local attorney, or a trusted business colleague who is in northern California for purposes of handling the Section 2 portion of the form on behalf of the employer.
Notwithstanding the designation, the employer itself remains liable for any violations in connection with the form or the verification process, including those committed by the person designated to act on behalf of the employer. Obviously, care should be taken in choosing a designee for this purpose.
Under IRCA, employers who knowingly hire or continue to employ workers not authorized to work in the U.S. face civil fines ranging from $559 for a first offense, to more than $22,000 for multiple offenses. These fines can add up fast because they are levied on a per employee basis.
While there are many components that go into a sound I-9 compliance policy, a first principal is certainly to start with the correct form. Make sure that your team is up to speed on the latest Form I-9 and begins using it by May 1, 2020, if not sooner.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.