On January 31, 2020, U.S. Citizenship and Immigration Services (USCIS) published a notice to the Federal Register announcing a new version of Form I-9, Employment Eligibility Verification. This new version was approved by the Office of Management and Budget (OMB) on October 12, 2019. Employers should begin using this updated form (10/21/2019) immediately, although the prior version (Rev. 07/17/2017 N) may be used until it becomes obsolete on April 30, 2020. You can find the edition date at the bottom, left-hand corner of the form and instructions.
Background
Form I-9 is used by all U.S. employers to verify the identity and employment authorization of individuals hired for employment in the United States. This form must be properly completed for each individual the U.S. employer hires for employment in the United States. This form is used for both U.S. citizens and noncitizens. Both the employee and employer, or authorized representative of the employer, must complete the form.
Form I-9 contains three sections:
- (i) Employee Information and Attestation: This section collects, at the time of hire, identifying information about the employee (and preparer or translator if used), and requires the employee to attest to whether he or she is a U.S. citizen, noncitizen national, lawful permanent resident, or alien authorized to work in the United States.
- (ii) Employer or Authorized Representative Review and Verification: This section collects, within three (3) days of the employee’s hire, identifying information about the employer and information regarding the employee’s identifying and employment authorization. The employee must present original documentation evidencing his or her identity and employment authorization, which the employer must review.
- (iii) Reverification and Rehires: Section three is primarily used to verify the continued employment authorization of the employee.
Employers must maintain Form I-9 for as long as an individual works for the employer and for the required retention period after termination of an individual’s employment (either three (3) years after the date of hire or one (1) year after the date employment ended, whichever is later). Additionally, employers must make their employees’ Form I-9 available for inspection upon request by officers of the Department of Homeland Security (DHS), the Immigrant and Employee Rights Section (IER) in the Department of Justice’s Civil Rights Division, and the Department of Labor (DOL). An employer’s failure to properly comply may subject the employer to civil money penalties, and in some instances, criminal penalties.
Changes to Form I-9
There does not appear to any substantive changes to the form itself, aside from the new edition date (now 10/21/2019) found in the bottom, left-hand corner of the form. USCIS has updated the following in the Form I-9 instructions:
- Clarified who can act as an authorized representative on behalf of an employer;
- Updated USCIS website addresses;
- Provide acceptable documentation clarification;
- Updated the process for requesting the paper Form I-9; and
- Updated the DHS Privacy Notice.
Use of the Updated Form I-9
As of January 31, 2020, employers should begin using Form I-9 with a version date of 10/21/2019 to comply with their employment eligibility verification responsibilities. Employers may continue using the prior version (Rev. 07/17/2017 N) until April 30, 2020. After April 30, 2020, however, the prior version will no longer be valid for use and will be obsolete. After April 30, 2020, employers who fail to use the updated Form I-9 may be subject to all applicable penalties under the Immigrations and Nationalities Act (INA), as enforced by U.S. Immigration and Customs Enforcement (ICE).
Employers do not need to complete the new Form I-9 (10/21/2019) for current employees who already have a properly completed Form I-9 on file, unless reverification applies. Unnecessary verification may violate the INA’s antidiscrimination provision, as enforced by the IER Section of the Department of Justice’s Civil Rights Division.
For best practice, employers using paper Form I-9s should discard any blank forms that have a version date other than “10/21/2019.” If you have any questions or concern regarding your employment eligibility verification responsibilities, be sure to contact Berardi Immigration Law.
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