January 25, 2017
USCIS ISSUES NEW FORM I-9 WITH ENHANCEMENTS, USE REQUIRED AS OF JANUARY 22, 2017: AGGRESSIVE ENFORCEMENT EXPECTED BY TRUMP ADMINISTRATION
The U.S. Citizenship and Immigration Services (USCIS) has issued a new Form I-9, Employment Eligibility Verification (revision date 11/14/2016). As of January 22, 2017, employers must only use this version of the form.
Section 274A of the Immigration and Nationality Act (INA) – Unlawful Employment of Aliens – prohibits employers from hiring for employment persons not authorized to work in the United States. It further requires employers to verify the identity and employment authorization of all persons, including U.S. citizens, in order to employ them.
Employers are subject to civil penalties for failure to comply with these requirements. Known as Employer Sanctions, these penalties include Knowing Hire (and Continuing to Employ) Violations and Paperwork Violations. Employers may be penalized for knowingly hiring, recruiting, or referring for a fee persons without valid employment authorization, as well as for knowingly continuing to employ persons after their employment authorization expires. Employers may also be penalized for Form I-9 Paperwork Violations for failure to timely and accurately complete Form I-9 for all persons, including U.S. citizens. Employer fines for Knowing Hire (and Continuing to Employ) Violations and Paperwork Violations were substantially increased at all levels in 2016.
Employers are also subject to criminal penalties, including both fines and incarceration, where there is a pattern or practice of violations relating to hiring, recruiting, or referring for a fee persons not authorized to work in the United States. Employers who violate these provisions may also be subject to debarment from government contracts.
Upon start of employment, employers are required to use Form I-9 to verify the identity and employment authorization of persons hired within the United States, as well as for reverification when such authorization expires. All U.S. employers must ensure proper completion of Form I-9 for each person hired for employment in the United States, including U.S. citizens and noncitizens.
All indications point to an aggressive immigration enforcement climate under the Trump administration, including worksite raids and audits of employers’ I-9s. Immigrant–dependent industries such as agriculture, construction, hospitality, and landscaping are especially at risk given the higher number of employees with immigration-related concerns.
Both employees and employers (or employers’ authorized representatives) are required to complete Form I-9.
Attest to their employment authorization and
Present the employer with acceptable, valid, unexpired, original documents of their choice from the Form I-9 List of Acceptable Documents, evidencing both identity and employment authorization.
Not specify or insist upon any particular document(s) from the Form I-9 List of Acceptable Documents,
Examine the original employment eligibility and identity document(s) of the employee’s choice from the Form I-9 List of Acceptable Documents,
Determine whether the document(s) are valid, unexpired, and reasonably appear to be genuine and to relate to the employee,
Record the document information on Form I-9, and
Retain Form I-9 for a designated period and make it available for inspection by authorized government officers.
The List of Acceptable Documents can be found on the last page of Form I-9.
The new Form I-9 reflects several “smart form” changes designed to reduce errors and enhance completion by computer. Among the changes in the new Form I-9, Section 1 now specifies “other last names used” replacing and clarifying the prior “other names used,” and streamlines certification for certain foreign nationals. Additional changes in the new Form I-9 include:
- Prompts to ensure that information is entered accurately,
- Ability to enter multiple preparers and translators,
- Specific area for additional information instead of using the Form I-9 margins,
- Separate page for Preparer and/or Translator Certification, and
- Instructions separate from Form I-9 with specific guidance for completion of each field.
The new Form I-9 is easier to complete by computer. These “smart form” enhancements include:
- Drop-down lists and calendars for filling in dates,
- On-screen instructions for each field,
- Easy access to the full instructions,
- Option to clear the form and start over, and
- Generation of a Quick Response (QR) Code after a completed Form I-9 is printed.
Shulman Rogers’ Immigration Practice Group, chaired by Michael Kabik, assists employers with I-9 Compliance and a full range of employment-based immigration support, including Work Visas and Permanent Residence sponsorship, as well as providing employers with best practices to maintain continuity of employment authorization within their workforces.
For further information, contact Michael at MKabik@ShulmanRogers.com. For on-going updates and developments in Immigration Law impacting employers and the immigrant community, follow Michael on Twitter and Linked-In.