New Form I-9 Provides Perfect Time for Employer Self-Audit

By Marylou Fabbo - Skoler Abbott & Presser

February 3, 2020

On January 31, 2020, the U.S. Citizenship and Immigration Services (USCIS) issued a new Form I-9, which is available on its website. Although employers can start using the form now, they are required to do so beginning May 1, 2020. The change in form provides a perfect time to make sure current employees’ Forms I-9 are accurately completed.

Changes to the New Form I-9 and Its Instructions

Employers must use Form I-9 to verify the identity and employment authorization of all employees. USCIS has made some changes to the form and its instructions. The change in the instructions clarifies who can act as an “authorized representative” of the employer and what constitutes acceptable documentation. USCIS has also updated its address, process for requesting the paper Form I-9, and the Department of Homeland Security Privacy Notice.

The changes in the form itself are not likely to apply to many employers: USCIS added Eswatini and North Macedonia to the countries of issuance field in Section 1 (employee’s section) and the foreign passport issuing authority field in Section 2 (employer’s section). Further, those changes are only visible when completing a fillable form on the computer. Employers can go to the USCIS website to download the new Form I-9.

Even though its use is not mandatory until May, the revision date of 10/21/2019 is on the new form. The new form only applies to new employees and those who need reverification. Other employees who have a properly completed Form I-9 on file cannot be required to complete the new form. Employers must maintain I-9 forms for as long as an individual works for the employer and for the required retention period after the termination of employment—either 3 years after the date of hire or 1 year after the separation date, whichever is later.

Now is the Time to Conduct an I-9 Audit

Over the past year, several of our clients have received a “Notice of Inspection” (NOI) from USCIS’s Homeland Security Investigations Divisions. An NOI requires an employer to provide within 3 days all of its original Form I-9s to USCIS. Deficiencies in the Forms I-9 result in a wide range of costly penalties. Even the best-intentioned employer may have errors in their Forms I-9. Do you?

Pull three I-9 forms out of your I-9 file. Now take a careful look at them. Is every section that needs to be completed fully and accurately completed? Is Section 1, the section the employee is required to fill out, complete, dated, and signed? (Social Security numbers are optional, so that space may be blank.) Do you know the difference between a Lawful Permanent Resident and An Alien Authorized to Work? Is the Employer’s Section, Section 2, completely filled out? Does the List A document or the List B and C documents section contain all information, including the Issuing Authority? Is the employee’s first date of employment included? Are photocopies of the documents the employee presented attached and, if so, why?

Some common I-9 errors include requiring an employee who has a List A document, such as a Lawful Permanent Resident Card (a/k/a “Green Card”), to also provide some other documentation such as a social security card. Because a Lawful Permanent Resident Card is a List A document, no other documentation can be required. Take a look at your I-9s. If there is a valid List A document, did someone, likely in error, also include a List B or List C document? Did you know that even if a Lawful Permanent Resident Card has an expiration date that has not passed at hire, you cannot re-verify the employee once the document has expired?    

Audits often start with an unexpected visit to your place of business. Your company may be a target, or a disgruntled employee may have dropped an (anonymous) dime claiming that some of your employees may not be authorized to work in the U.S. So, take a look at your audit files; if you find a few incorrect I-9s, it is time to conduct a full audit. If you’re not knowledgeable about I-9 requirements, you should consider hiring an attorney to conduct the audit and provide legal guidance on how to correct them. “Correcting” an I-9 incorrectly defeats the purpose of an audit. While an internal audit does not insulate companies from penalties for violations, an audit that identifies problems can provide guidance for employers going forward.