New Form I-9

Author: Melissa A. Silver, XpertHR Legal Editor

The Immigration Reform and Control Act (IRCA) requires employers to verify the identity of their employees and their employment eligibility. To do so, employers and employees are required to fill out a Form I-9 for all new employees hired and for employees who left employment and are rehired more than three years after their original hire date. In addition, employees must provide documentation to their employer verifying their identity and work authorization.

By January 22, 2017, employers must use only the new version of the Form I-9, dated 11/14/2016, when verifying the identity and work eligibility of new hires. This form gives an employer and an employee the option to either complete the Form I-9 on the computer (i.e. smart form), on paper, or a combination of both.

The following are some key steps to assist an employer in verifying a new hire's identity and work eligibility with the new Form I-9.

1. Get Acquainted With Improvements to the New Form

The new Form I-9 has the following improvements to assist employees and employers when completing the Form I-9:

  • Embedded instructions for completing each field;
  • Validations on certain fields to ensure information is entered correctly;
  • Additional spaces to enter multiple preparers and translators;
  • Drop-down lists;
  • Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over;
  • A dedicated area to enter additional information;
  • A quick-response matrix barcode, or QR code, that generates once the form is printed and can be used to streamline audit processes;
  • A clarification that employees provide only other last names used in Section 1, rather than all other names used;
  • Removal of the requirement that aliens authorized to work must provide both their Form I-94 number and foreign passport information in Section 1; and
  • An additional Supplement in cases in which more than one preparer or translator is used to complete Section 1.

2. Ensure Employee Completes Section 1

Employees can complete the Form I-9 as early as acceptance of the job offer, but it must be completed no later than the first business day of employment for pay. Section 1 requires that the employee provide the following:

  • Full legal name;
  • All last names used;
  • Current address;
  • Date of birth;
  • Social Security Number (however this is voluntary unless the employer uses E-Verify);
  • Citizenship or employment-authorized immigration status;
  • The individual's alien registration number (if applicable);
  • Admission number or foreign passport number and the country of issuance (if applicable), as well as the date of the employment authorization expiration; and
  • The employee's signature.

Even if the employee completed Section 1 on the computer, he or she must print the form and sign it. Telephone number and email address are optional fields. If the employee does not provide this information, then he or she must enter N/A in the field.

3. Avoid Discrimination During the Document Review Process

As part of completing Section 2 of the Form I-9, an employer is required to review the documents provided by an employee that establish his or identity and work eligibility. An employer can expose itself to a document abuse claim if it demands that the employee provide specific documentation. An employer is also prohibited from requesting more or different documents than are required to verify employment eligibility, rejecting reasonably genuine-looking documents, or specifying certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.

4. Retain I-9 Forms

Once the Form I-9 is completed, employers must retain the Form I-9 for each employee throughout his or her period of employment. Forms I-9 must be stored for three years after the date an employee was hired or one year after the date employment is terminated, whichever is later.

The forms must be stored separately from personnel records for ease of internal auditing and ease of retrieval in the case of a government audit or inspection.

5. Train Supervisors on the Form I-9 Process

In organizations that designate a supervisor with the responsibility of completing the Form I-9, the supervisor needs to follow the legal requirements and best practices to ensure that new employees are authorized to work in the US. As a result, organizations should provide regular training to all supervisors and personnel responsible for the Form I-9 process to ensure a consistent level of knowledge of compliance obligations.

6. Conduct an Internal Form I-9 Audit

Conducting an internal audit is a way for employers to be proactive in the event of a government audit as it will help identify any mistakes made during the verification process. If an employer discovers a mistake or an omission it should:

  • Not conceal the mistake or ignore it because it could expose itself to liability;
  • Make the corrections in a conspicuous ink color and initial and date when the correction was made;
  • Not backdate any forms; and
  • Attach a note to the form briefly summarizing the reason for the change.