Form I-9 Changes May Usher in Era of Increased Enforcement
Author: Marta Moakley, XpertHR Legal Editor
November 15, 2016
The United States Citizenship and Immigration Services (USCIS) has released a revised Form I-9. According to the agency, the changes are designed to reduce errors and to enhance form completion using a computer. Employers should expect additional developments in the area of immigration law enforcement under a Trump administration.
Form I-9 Revisions
By January 22, 2017, employers must use only the new version of the Form I-9, dated 11/14/2016. Until then, an employer may continue to use the version dated 03/08/2013 or the new version.
Section 1 of the revised form asks for "other last names used" rather than "other names used." Other changes include:
- The streamlining of certification for certain foreign nationals;
- The addition of prompts to ensure information is entered correctly;
- The ability to enter multiple preparers and translators;
- A dedicated area for including additional information rather than having to add it in the margins; and
- A supplemental page for the preparer or translator.
Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including US citizens, for employment in the US without verifying their identity and employment authorization on the Form I-9.
Post-Election Employment Verification Documentation Enforcement
Jorge R. Lopez, Littler Shareholder and Chair, Global Mobility and Immigration Practice Group, believes that there will be a renewed focus on enforcement during the Trump administration. In an interview with XpertHR, Lopez explained, "We just need to create an expectation that there will be more of a compliance-oriented focus in recruiting and retention. Overall, there will be more of an environment of audits and enforcement."
A Post-Election Report issued by the Littler Workplace Policy Institute, which Lopez co-wrote, cautions employers "to expect the Department of Homeland Security's Immigration and Customs Enforcement (ICE) to ramp up enforcement of employment verification documentation." In addition, legal immigration may be restricted, with a potential "stop to all employer-sponsored green card issuance."
Employees may be concerned about potential changes to their visa renewals or employment status, and may contact HR about their concerns. However, Lopez cautions, "HR shouldn't get involved in advising an employee as to his or her immigration status." Instead, HR should encourage employees to contact their own immigration counsel for advice.
Lopez encouraged employers to emphasize sound recordkeeping practices, which may include abstaining from making copies of Forms I-9. Because making copies is optional, and the great majority of violations are paperwork-related, Lopez advises clients to avoid retaining copies. Fines for paperwork and other IRCA violations increased significantly in 2016, as a result of the Inflation Adjustment Act.