U.S. Citizenship and Immigration Services (USCIS) has recently announced that another revised version of the Form I-9 is now available and ready for use. As many of you are aware, employers must complete and retain a Form I-9 for every employee hired on or after 1986 continuing in their employment and have a reasonable expectation of employment. The Form I-9 is used for employment eligibility verification by confirming the identity and employment authorization of individuals hired for employment in the United States. Employers must complete and sign Section 2 of Form I-9, Employment Eligibility Verification within 3 business days of hire of their employee (the hire date means the first day of work for pay).
Employers may continue to use the version of the Form I-9 with a revision date of November 14, 2016 for new hires until September 17, 2017. On September 18, 2017, any previous versions of the form will no longer be valid for newly hired employees and employers will be expected to be fully transitioned to the new form, which will not have an expiration date until August 31, 2019. You do not have to update or redo employee Form I-9s on file if the information is otherwise accurate. Employers only must ensure the new Form I-9 is used for all new employees moving forward after September 17, 2017.
Changes with the new Form I-9 are focused on the instructions and revisions related to the List of Acceptable Documents. Key changes to the new form include:
- The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been changed to its new name, Immigrant and Employee Rights Section.
- “The end of” has been removed from the phrase “the first day of employment.”
- The Consular Report of Birth Abroad (Form FS-240) has been added to List C. Employers completing Form I-9 on a computer can select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users can also select Form FS-240 when creating a case for an employee who has presented this document for the Form I-9.
- All certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C #2 in List C.
- All List C documents have been renumbered except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.
In support of this enforcement activity, ICE released the “ICE Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties.” That agency field manual provides insight into the administrative procedures and penalty scheme for administrative inspections for the agency’s special agents and forensic auditors. This “fine guideline” only briefly discusses the remedial impact of “auditing” a company’s Forms I-9 PRIOR to ICE serving a Notice of Inspection on the company.
There have been countless seminars over the last several years talking about the need for Human Resource (HR) professionals to “audit” their own Forms I-9, and even describing how this auditing should be done. Here is the bad news–companies that audit their own Forms I-9 are not significantly reducing the potential fines and in many situations may actually make matters worse, because much of this audit work perpetuates previous errors made by the same person who is now auditing the forms.
In a recent AILA Seminar on work site enforcement issues, an ICE representative made it quite clear that self-audits typically result in more difficult situations for the employer than if an audit is done by a qualified, experienced, independent auditor, such as an attorney. Examples of massive mistakes made by self-auditing after attending a self-taught “training session” include: redoing all the Forms I-9 and throwing away the originals, separating copies of documents from Forms I-9 and throwing them away, making changes to Forms I-9 without initialing and dating the Forms, and inserting backdated information in Forms I-9 making them appear to be completed timely. Each one of these “mistakes” in auditing has led to massive fines by ICE and even findings of unlawful employment of aliens.
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