USCIS recently released a revised version of Form I-9, the Employment Eligibility Verification document. Since November 1986, all U.S. employers have been required to complete and retain the I-9 for all new employees. Employers may continue using the I-9 form dated March 8, 2013 until Jan. 22, 2017, when the use of the revised form becomes mandatory. It remains a 3 page form, but there are minor revisions, including a separate supplemental page for a preparer/translator and an “additional information” box on page 2, but there is also a new user-friendly online PDF “smart” version of the form available at http://www.uscis.gov/files/form/i-9.pdf.
The new online I-9 provides helpful tools, including drop-down menus and instructions for each form field. Preparers can save changes to the form, and it also pre-populates relevant portions (for example, checking the box indicating the employee is a U.S. citizen will automatically note “N/A” in the Alien Registration Number field). Additionally, for employers with foreign workers, there is now further information on what immigration-related documents are acceptable under the List A Identity and Employment Authorization documents. It also accommodates forthcoming changes in immigration regulations becoming effective on January 17, 2017. Workers employed based on Employment Authorization Documents (EADs; also known as Form I-766), including foreign students, spouses in H-4, L-2, or E-2 status, and applicants for lawful permanent residence, who apply to renew their EADs may now continue working, even with an expired EAD, while the renewal application is pending with USCIS. Although the I-9 paper instructions are not clear, the “smart” form instructions note that an employee who has an expired EAD will be able to provide a copy of the expired EAD along with Form I-797C, Notice of Action (receipt notice), for the renewal application as List A documents. These instructions will be explained when the new Handbook for Employers: Guidance for Completing Form I-9 (Form M-274) is updated. Because the rules on when an EAD remains valid after the expiration date are complicated and confusing, the online “smart” I-9 is very helpful to work through this minefield.
The new PDF form is not an electronic form as used by E-Verify employers and does not confirm employment eligibility of new employees. Additionally, employers may continue to simply print the blank paper I-9 and complete it by hand. Other than the new revised form and online “smart” form, I-9 requirements have not changed. Existing employment verification and I-9 retention requirements remain in place. Employers must give new employees the attached List of Acceptable Documents (page 3 of the form) and cannot specify which List A or List B documents the employees must provide. Employers must also retain I-9s for 3 years after date of hire or 1 year after employment ends, whichever is later. Other rules regarding the preparation of I-9s also have not changed: either one document from List A or combination of List B and List C documents must be presented by the employee; the employer or its representative are required to physically examine original documents and certify Section 2 within 3 business days of the first day of employment; and Section 1 must be completed by the employee after accepting the job offer but no later than the first day of work. Employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9.
As noted, USCIS is updating the Handbook for Employers and this new edition will be available in January 2017. It provides useful information on completing the I-9, retention requirements, unlawful discrimination and prohibited practices, and the E-Verify system. To obtain either the Handbook or I-9 forms (including Spanish language versions), or brush up on your I-9 knowledge via an I-9 Webinar on Demand, visit I-9 Central at https://www.uscis.gov/i-9-central.