Do you know what an I-9 form is?
If you have employees, then you should be familiar with USCIS Form I-9. If you’re not familiar with it, then you need to get up to speed really quickly.
In a nutshell, if you are hiring employees to work in the US, then you are responsible for and must use the US Citizenship and Immigration Services (USCIS) Form I-9 to verify the identity and employment authorization of individuals hired to work for your company as employees.
The form must be completed by all US employers, and it must be properly completed for every individual hired for employment in the US – including citizens and noncitizens. There are sections in the form that must be completed by the employees and employers (or authorized representatives of the employer).
New Form I-9 was Released
A new Form I-9was released with the date of 08/01/2023 (the date is in the lower left corner of the document).
Many of the form’s changes seem to be related to the new rules that allow for remote examination of the required documents, and the employment verification process. The E-Verify program has allowed employers to remote examine the employees’ identity and employment authorization documents. If an employer opts for this, there is a box that must be checked in Section 2 in the Additional Information field on this new form. There is also a requirement pertaining to the retention of the employee’s I-9 form and all I-9 documents that are remotely examined.
A copy of the new Form I-9 is available on the USCIS website and it is available in Spanish. Effective November 1, 2023, all employers must use this form. Older versions of the form should not be used as they are no longer valid. Doing so may subject the employer to penalties. NOTE: Only employers located in Puerto Rico may complete the Spanish-language version of Form I-9 instead of the English-language version.
E-Verify
If you are unfamiliar with E-Verify, visit their website. If you are a federal government contractor, then you may be required to use E-Verify to electronically verify the employment eligibility of employees working under covered federal contracts. There is a Federal Acquisition Regulation (FAR) rule that requires federal contractors to use E-Verify. The order and the rule reinforce Federal government policy that the Federal government does business only with organizations that have a legal workforce.
Completing the Form I-9
An employee must attest to their employment authorization on the form. The employee must also present their employer with acceptable documents as evidence of identity and employment authorization. The employer must examine these documents to determine whether they reasonably appear to be genuine and relate to the employee, then record the document information on the employee’s Form I-9. Certain employers who choose to remotely examine the employee’s documentation under a DHS-authorized alternative procedure rather than via physical examination must indicate they did so by checking the box provided.
If you are unfamiliar with the process, there are instructions for completing the form. If you haven’t done so, be sure to download the instructions from the USCIS website. Review the instructions so you understand what your responsibilities are as an employer.
Also ensure that you provide a copy of the instructions to the employee along with the form. It can be provided either as a hard copy or electronic copy, or a hyperlink. The instructions are also available in Spanish. Any employer may use the Spanish-language I-9 form and instructions as a translation tool.
The Form I-9 is fillable, which means the answers can be typed directly on the form instead of printing a blank form and writing the answers by hand.
Both employers and employees will still need to print the completed sections of the form to sign them manually, unless the employer chooses to upload the form to an electronic signature solution that complies with these regulations, to have all parties sign electronically.
Form I-9 retention
Form I-9 may be generated, signed, and retained electronically, in compliance with Department of Homeland Security regulations at 8 CFR section 274a.2. The complete form is not filed with USCIS or the US Immigrations and Customs Enforcement (ICE).
It is very important that employers retain all completed pages of Form I-9 for a designated period and make them available for inspection by authorized government officers. It is the employer’s responsibility to know what this designated period is, and what is allowable destruction of the copies that the employer no longer needs to retain.
Quick glance
Employers must:
- Have a completed Form I-9 on file for each person on their payroll who is required to complete the form
- Retain and store the employee’s Form I-9 for three years after the date of hire, or for one year after employment is terminated — whichever is later
- Make their forms available for inspection if requested by authorized US government officials from the Department of Homeland Security (DHS), Department of Labor (DOL), or Department of Justice (DOL)
Legal advice
If you need advice pertaining to remote verification, document examination, and document retention, you should contact your employment and/or immigration attorney. While it may seem simple at face value, navigating this process can be complex. It is cheaper to pay to consult an attorney and get it right, than to get it wrong and pay a lot more money later on when there is a problem.
Form I-9 audit
If you receive communication from a US federal government agency that you will be subject to an Form I-9 audit, it is very important that you contact your employment attorney. There is usually a quick response time. If you or your HR department has stayed on top of the I-9 process as well as changes to the particulars surrounding compliance, then you may have a head start. However, there are specific actions that you will need to take to prepare for this audit, and our recommendation to our clients is that they should not try to do this on their own.
Need help with next steps or have questions about this topic?
If you need help, please reach out. The proper completion and retention of each Form I-9 are one area that employers have legal and financial exposure. This is something you don’t want to get wrong. Planning for the “What If”™ is what we do. Creating a policy and process as part of a business’ overall HR policy and strategy is very important. Not doing so can create a big “oh sh*t” moment. Mitigating it in advance is easier and also more cost effective.
Reach out via the contact page and we can set up a call to talk and we’ll figure out suggestions based on our initial conversation.
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