Employers are reminded that the new Employment Eligibility Verification Form (I-9) must now be used. The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers to verify the employment eligibility and identity of all employees hired to work in the U.S. after November 6, 1986 by completing a Form I-9. Employers are required to retain I-9s for each employee for three years after the employee’s date of hire, or one year after the date that employment is terminated, whichever is later. Employers are permitted to retain the I-9 in paper, microfilm, microfiche or electronic format. In order to properly complete Form I-9, employees must provide, and employers must personally inspect, original documents that attest to the employee’s identity and his or her authorization to work in the U.S. The new Form I-9 can be downloaded from the USCIS website at http://www.uscis.gov.

Immigration and Customs Enforcement (ICE) has provided the following practice pointers for employers:

  • Use of an old I-9 after May 6, 2013 is a technical violation, which the employer can correct by either executing a new I-9 using the current form or by attaching an acknowledgement and explanation of the reason for the error.
  • Employers are reminded that new hires must be provided with the full, expanded I-9 instructions at the time they complete Section 1 of the I-9. The employer must provide both the employee and employer portion of the instructions. The employer is not permitted to restate or reformat the I-9 instructions but may laminate the official I-9 instructions for distribution to new employees.
  • Employers should be sure to train those involved in the I-9 process about new data fields on the Form I-9. In Section 1, there are two new optional fields – the employee’s phone number and email address. The form does not state that these fields are optional, although the instructions do. There is a new field for the employee’s foreign passport information (if applicable). In the field below the Section 2 introduction, there is a new field for the employer to enter the last name, first name and middle initial, if any, that the employee entered in Section 1. Doing so will help to identify the pages of the form should they get separated.
  • The instructions state that if there is no information to be put into one of the data fields, “N/A” should be noted. In the first line of Section 1, Other Names, the employee must record “N/A” in the corresponding field if he or she has no other names.
  • Employers should be sure that employees involved in the I-9 process are trained to guide a nonimmigrant employee who was admitted to the U.S. by Customs and Border Protection with an electronic I-94 record so that the employee can properly record their I-94 record and foreign passport. (See our Immigration Advisory on the new electronic I-94 process).
  • When an employee at hire presented documents that have since expired and need to be reverified, the employer may not use Section 3 of an outdated I-9 form to record the reverification of the updated documents. Employers must use Section 3 of a valid I-9 form to record all reverifications.
  • Employers are reminded that a new version of the M-274 Handbook for Employers is also available and can be downloaded from the USCIS website at http://www.uscis.gov.
  • USCIS also confirmed that the three-day rule for completing Section 2 of Form I-9 is based on the employer’s operations schedule. If the employer operates a business that is closed on weekends, the three business days for the employer’s requirement to complete Section 2 does not include weekends. However, if the employer’s business runs through weekends or holidays, such as a hospital or production plant, the employer must complete Section 2 within three business days including weekends and holidays. This interpretation applies even if the business does not have human resources or management staff available on such weekends or holidays.

We continue to monitor the status of employment eligibility verification requirements and will update you with the latest developments. In the meantime, please feel free to contact any of our immigration attorneys with questions you might have regarding the new Form I-9 or about the I-9 process in general.