Are You Ready for the "New and Improved" I-9 Form?

This alert reminds employers about the new I-9 employment authorization verification form and explains how to prepare to use it as required starting on May 7, 2013.

Background

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify that newly hired employees are authorized for employment. As a result, the Immigration and Naturalization Service created the now-familiar I-9 form. Among other things, the original I-9 form required that employees present documentation confirming their identity and employment authorization. Some documents, such as a U.S. passport, Permanent Resident Card or Alien Registration Receipt Card, do both. These types of documents are commonly referred to as "List A" documents. Other documents confirm only identity ("List B") and others only employment authorization ("List C"). A newly hired employee must present either one document from List A or one document from List B and one from List C. IRCA also imposes a nondiscrimination obligation on employers, which is enforced by the U.S. Department of Justice.

The New Form

On March 1, 2003, U.S. Citizenship and Immigration Services (USCIS) took over responsibility for the I-9 form as well as for documentation of alien employment authorization. Immigration and Customs Enforcement (ICE) enforced most of IRCA's requirements, including the completion of form I-9. The Justice Department continues to enforce IRCA's anti-discrimination provisions.

USCIS has issued a new I-9 Form and a new Handbook for Employers. The new form has been optional since its release on March 8, 2013, but again, its use will become mandatory as of May 7, 2013. Importantly, IRCA has not changed with the issuance of the new I-9 form. Employers remain under the same obligation to verify identity and employment authorization.

The new I-9 form is nine pages long, but the core of the new form is found in two of those pages —the pages completed by the employer and employee to confirm identity and employment authorization. Most of the other pages offer instructions for employees and employers to follow in completing the form. The last page of the new form describes the currently acceptable List A, B and C documents.

The new form mandates that employees complete Section 1 of the I-9 form anytime between the date the employee accepts an offer of employment and the end of the employee's first day of employment. Employers must ensure that Section 2 of the I-9 form is completed within the first three days of employment.

What Employers Need to Know

An employer must continue to physically examine documents presented by an employee used to confirm identity and employment authorization. The employer must confirm that the document appears to be genuine and that it relates to the employee. To confirm whether a document is genuine, the employer should consult the Handbook for Employers, which provides a detailed discussion about and examples of the documents currently acceptable for verifying identity and employment authorization. Employers should take note that the list of documents that are acceptable as List A documents has changed significantly with the new I-9 form.

Several previously acceptable documents no longer are acceptable:

• Alien Registration Receipt Card with photograph — Form I-151
• Unexpired Reentry Permit — Form I-327
• Unexpired Refugee Travel Document — Form I-571
• Unexpired Temporary Resident Card — Form I-688
• Unexpired Employment Authorization Card — Form I-688A
• Unexpired Employment Authorization Card with photograph — Form I-688B
• Certificate of Naturalization — Form N-550/570
• Certificate of U.S. Citizenship — Form N-560/561

On the other hand, several documents are newly considered to be List A documents:

• Foreign passport with Arrival/Departure Record with endorsement — Form I-94/94A
• Employment Authorization Document with photograph — Form I-766
• Passport from the Federates States of Micronesia with Form I-94/94A

U.S. Passports, U.S. Passport Cards, Permanent Resident Card (form I-551) and foreign passports with a Form I-551 stamp or notation remain acceptable List A documents. The List B and List C documents have not changed with the new I-9 form. As of May 7, 2013, only the list of acceptable List A documents appearing at the end of the new I-9 form may be used.

As with the old I-9 form, employers must retain the I-9 form throughout the employee's employment. After the employee's employment ends, employers must retain the I-9 form for the longer of either three years from the employee's date of hire or one year from the employee's termination. Only the two pages of the I-9 form containing the information entered by the employer and employee must be retained. An employer has the option of keeping copies of the documents presented by the employee. If an employer chooses to retain photocopies of the documents employees present in connection with the I-9 process, it should do so consistently for all new hires.

Human resources professionals charged with overseeing I-9 form completion or retention are encouraged to study the USCIS Handbook for Employers. It contains a wealth of reference material, including detailed information on completing and retaining the I-9 form, avoiding discrimination problems, the role of third-party recruiters and use of the E-Verify system. The Handbook also includes a useful FAQ section.

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.