10/18/2017 by Attorney Gretchen Ostroff
United States Citizenship and Immigration Services (“USCIS”) has again changed the Form I-9, less than a year after its last revision. You may recall that in January 2017, a new Form I-9, dated November 14, 2016, replaced the prior version of the form, which had not been updated since 2013. The core Form I-9 requirements were unchanged, but the November 14, 2016, version included additional instructions and enhanced formatting, including to provide for completion in a fillable-PDF format.
Less than 6 months later, on July 17, 2017, USCIS released yet another updated Form I-9. Until last week, employers had the option of using the November 2016 or the July 2017 version of the form. However, the July 2017 version became mandatory on September 18, 2017.
The July 17, 2017, Form I-9 reflects changes to the prior version in the following, almost entirely non-substantive, ways:
· In the accompanying “Instructions for Form I-9, Employment Eligibility Verification,” the “Office of Special Counsel for Immigration-Related Unfair Employment Practices” was changed to “Immigrant and Employee Rights Section.” This change simply reflects the change in the name of this division of the Department of Justice.
· Also in the accompanying Instructions, specifically those related to “Completing Section 1,” the phrase “the end of the first day of employment” was changed to “the first day of employment.” It appears this change was made simply for consistency with Section 1 of the Form I-9, which already referenced “the first day of employment” (not “the end of” the first day).
· List C “Documents that Establish Employment Authorization” was changed by adding Form FS-240 “Consular Report of Birth Abroad” as an acceptable document, combining all Department of State-issued certifications of report of birth (Form FS-240, Form DS-1350, and Form FS-545), and renumbering the List C documents. Other than adding Form FS-240 as an acceptable document, these changes were purely to format.
As was the case with the prior change, employers do not need to use the new Form I-9 on existing employees—they should simply start using the form for employees hired or who require recertification on or after September 18, 2017. Proper compliance requires the employer to use the version of the form in effect on the date the employee was hired or recertified. If the wrong form was used, the employer should redo the employee’s Form I-9 using the correct form. USCIS’s issuance of the new Form I-9 did not affect applicable retention requirements, which remain the same: employers must retain Form I-9s for all current employees and, for former employees, must retain Form I-9 for the longer of (1) one year after the employee’s termination date; or (2) three years after the employee began work for the employer.
It is important for employers to ensure they strictly comply with the Form I-9 requirements—including by using the correct version of the form. Fines for Form I-9 paperwork violations, which include using an outdated version of the Form I-9 range from a minimum of $216 to a maximum of $2,156 for each and every Form I-9 violation occurring after November 2, 2015. The new Form I-9 and associated forms can be found here: https://www.uscis.gov/i-9