Employers Must Begin Using The Updated Form I-9 On September 18, 2017

Federal law requires that every employer who hires an individual for employment in the United States must complete Form I-9, which is used to verify the identity and employment authorization of individuals hired to work in the United States. The United States Department of Citizenship and Immigration Services (USCIS) released a revised version of Form I-9 on July 17, 2017, which employers must begin using starting September 18, 2017. The updated form can be downloaded here: https://www.uscis.gov/i-9.

All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, within three days of hire. This includes citizens and noncitizens. Employees must present their employer with acceptable documents evidencing their identity and employment authorization. The employer must then examine the documents to determine whether the documents reasonably appear to be genuine and relate to the employee. The employer must then record the document information on the Form I-9.

Importantly, you must physically examine the documents, and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. The documents must be originals. The only exception is that an employee may present a certified copy of a birth certificate. If the documents do not reasonably appear on their face to be genuine or to relate to the person presenting them, you must not accept them. However, you must provide the employee with an opportunity to present other documents from the Lists of Acceptable Documents on the I-9 form.

You generally must not accept expired documents. However, you may accept Employment Authorization Documents (Form I-766) and Permanent Resident Cards (Form I-551) that appear to be expired on their face, but have been extended by USCIS.

Employers must have a completed Form I-9 on file for each person on their payroll who is required to complete the form. Form I-9 must be retained and stored by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials from the Department of Homeland Security, Department of Labor, or Department of Justice.

Employers need not obtain the form from independent contractors, i.e., individuals who are not on the employer’s payroll. For example, if you contract with an IT company to perform upgrades to your computer networks, you do not have to complete Form I-9 for that company’s employees. Rather, the IT company would be responsible for completing Form I-9 for its own employees.

You may terminate an employee who fails to produce the required documents within three business days of the date employment begins. Indeed, continuing to an employ someone who has not presented the appropriate documents may subject the employer to significant liability. Employers who violate the law in this area may be subject to civil fines and even criminal penalties (where there is a pattern or practice of violations).

Employer Action Items:

Starting September 18, 2017, employers must use the updated Form I-9 to verify the identity and employment authorization of each person they hire, and complete and retain the form for each employee who is required to complete the form. Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others. The Form I-9 must be retained and stored by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later.