On November 14, 2016, the United States Citizenship and Immigration Services (“USCIS”) released a new I-9 Employment Eligibility Verification Form. (All employers are required to complete an I-9 Form for each new employee to document the verification of the employee’s identity and authorization to work). The new I-9 Form is effective January 22, 2017, employers should start using the new I-9 Form immediately for all new hires and reverifications. The prior version, which has been in effect since 2013 is now obsolete. The new I-9 Form can be found here: https://www.uscis.gov/i-9.
Employers that fail to use the new I-9 form on or after January 22 will be exposed to fines, which increased significantly on August 1, 2016, for I-9 paperwork violations – from a prior range of $110 to $1,100 to $216 to $2,156 per I-9 form. Failing to use the new I-9 form is a paperwork violation. Under its current policy, Immigration and Customs Enforcement (“ICE”) generally fines the employer at the higher end of the range – even if the employee has work authorization and is a U.S. citizen or lawful permanent resident.
The new I-9 form is similar in many ways to the previous version, but some individual fields and the instructions (which have expanded from 6 to 15-pages) for completing the 2-page form have been revised. The acceptable documents list and retention requirements remain the same.
There are three ways for an employer to complete Form I-9:
1. Print it and fill it out manually.
2. Fill it out electronically using the new “smart” form, then print and sign it – using the online “smart” form does not qualify as a compliant electronic I-9.
3. Use an electronic I-9 vendor, in which case the employer should verify that the vendor has updated the form as of January 22.
The new form is now considered a “smart” I-9 because it provides a fillable, interactive PDF option that enables users to complete the form online before printing and signing a hard copy of the form. This form limits options for further responses based on information previously provided. It auto-populates some fields based on information entered on the form and flags errors and fields in which information is missing (N/A must be inserted if field is not applicable). It provides a link to the form instructions and drop-down menus listing the acceptable documents. Most fields also have an icon that hovers over the field and provides further instruction.
Another improvement appears on page 2 of the new form in the Employer’s section, which now contains a large box provided for the purpose of entering additional clarifying information. For example, certain categories of foreign nationals have a unique employment authorization status which may require special notes. Just a few examples include: Temporary Protected Status for nationals from, for example, Syria, Somalia, and the Sudan, STEM-based Optional Practical Training for foreign students, “Cap Gap” continued work authorization for successful H-1B lottery applicants; and H-1B change of employers. This space may also be used to record the E-Verify case number (which must be recorded on the I-9).
The use of this new smart I-9 form, however, does not provide a safe harbor against immigration enforcement, is not integrated with E-Verify, and cannot store information or enable reporting. Further, despite these technological advances, the new I-9 form still requires the employer representative to conduct the verification process in the physical presence of the employee – the use of FaceTime or Skype for the new hire verification process is prohibited.
In light of President Trump administration’s focus on immigration enforcement, we strongly recommend that employers examine their hiring practices and policies and establish clear and compliant employment verification protocols which include the use of the new I-9 Form.
As reflected in President Trump’s 2nd Executive Order issued on January 25, 2017, ICE will triple in size through the hiring of an additional 10,000 officers. The new administration is focused on reducing “illegal immigration” through a renewed worksite enforcement strategy.
As a practical matter, the new administration must pursue this strategy to pay for the increased enforcement. The prior worksite enforcement strategy carried out in fiscal year 2009-2012, netted $31.2 million dollars in fines paid by U.S. Employers (prior to appeal these Employers faced $55 million dollars in cumulative fines), of which only about 9,000 employers were audited. There will be a significant increase in the number of U.S. employers that will be audited on their I-9 forms and subjected to (higher) fines over the four (4) years.
April A. Caminez-Bentley, Esq. at Messer Caparello can answer questions that you may have regarding the new I-9 Form or about whether your I-9 records comply with applicable federal regulations. Additionally, please contact us if you are interested in having an internal audit of your I-9 Forms conducted, as the procedure by which the form is completed and audited is just as important as the information provided on the form in the eyes of the enforcement agencies.
April A. Caminez-Bentley, Esq.