By Jaclyn Granet and Frida Glucoft

July 31, 2017

Onboarding a new employee is a time-consuming process that requires diligent review of employment authorization materials. One major element of onboarding is the completion of the Form I-9, intended to document verification of the identity and employment authorization of each new employee. Form I-9 has seen many modifications and revisions over the years, including a significant update in 2013. The Department of Homeland Security (“DHS”), through the United States Citizenship and Immigration Service (“USCIS”), released a new edition of the Form I-9 on July 17, 2017. This newest version of the form may be used immediately. However, USCIS has authorized a grace period during which either the new version of the Form or the last version may be used. Following the end of the grace period, on September 18, 2017, all U.S. employers are required to use the new Form I-9 for all new hires. Employers should only complete the new Form I-9 for new hires and current employees requiring reverification. Given the significance of the Form I-9, it is important for all employers to familiarize themselves with the new features of the Form and the mandatory time frame for its usage.

The Changes to the New Form I-9 Instructions

The new Form I-9 is accompanied by fifteen (15) pages of instructions that are far more detailed and comprehensive than previous versions. The changes to the Form I-9 Instructions, include the following:

• As of January 18, 2017, the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been renamed to the Immigrant and Employee Rights Section (“IER”). As a result, the name has been updated in the instructions to Form I-9.
• The term “the end of” has been removed from the phrase “the first day of employment.”

The Changes to the New Form I-9

The changes made to Form I-9 itself are all contained on page 3 for List C. The changes to the Form include the following:

• Consular Report of Birth Abroad (Form FS-240) has been added to List C.
• All certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) are combined into List C, #2.
• The documents listed in List C, aside from Social Security card, have been renumbered.

The New Handbook for Employers

The new Form I-9 is accompanied by a newly revised version of the M-274: Handbook for Employers, available online at http://www.uscis.gov. This version of the Handbook is a one hundred and fifteen (115) page manual that attempts to cover all possible scenarios an employer may encounter when completing the Form I-9.

Implications and Recommendations

We recommend that all U.S. employers make the necessary changes to their organization’s I-9 compliance manuals, policies, and procedures between now and September 18, 2017, to ensure that the new Form I-9 is being used, and used correctly. We also recommend the implementation of I-9 compliance training programs to instruct human resources personnel on the proper use of the Form, which also includes storage and retention.

USCIS in its release of the new Form I-9 confirmed that employers should continue to follow existing storage and retention rules. Per the instructions, Form I-9 should be stored either on-site or at an off-site storage facility. Employers must be able to produce the Form within three (3) business days of the date of request by Immigration and Customs Enforcement (“ICE”) or other government agencies.

Employers should retain Form I-9 separate from personnel records to promptly facilitate an inspection request. In addition, employers are required to maintain Form I-9 records of all employees until either three (3) years after the date the employee began work for pay, or one (1) year from the date employment was terminated, whichever is later. The thorough and accurate completion of the Form I-9 for every new employee is of critical importance in connection with the employer compliance of federal immigration laws. Our team of knowledgeable Immigration Attorneys will be happy to guide Form I-9 training programs and answer any questions that you may have with respect to employment authorization.

For access to Form I-9 and its instructions, please follow this link: https://www.uscis.gov/i-9