Employers Get Ready, Set, Go . New 2 Page I-9 is HERE

On March 8, 2013, USCIS will release the much awaited, and somewhat dreaded, two page I-9 Form. Click here to see the advanced Fed. Register Notice.   You’ll see format changes, new fields (some mandatory, some optional), clarified instructions and much more.   Click here to see earlier-proposed versions of the form released on 3/27/2012 and 8/23/2012.   The new, revised Form I-9 will contain a revision date of “(Rev. 03/08/13)N.”  Once available, a copy of the new form will be available on the USCIS webstite. Employers should begin using this new form immediately.

Here are a few key things to know:

By May 8, 2013, employers must be using the new form exclusively.  Using the old form after May 8 will be a basis for penalty assessment.

  • The timeframes for completing  and retaining the I-9 Form remain the same.
    • Section 1 of the Form I-9 must be completed (and signed) by the employee on the first day of work for pay or before the first day of work for pay, if the employer has offered the individual a job and if the prospective employee has accepted it.
    • Section 2 of the I-9 Form must be completed (and signed) by the employer within three business days of the employee’s first day of work for pay.
    • Section 3 of the I-9 Form (if required) must be completed by an employer if an employee’s employment authorization or documentation of employment authorization has expired – re-verification must occur on or before the employee’s work authorization expires.   An employer may choose to complete Section 3 when an employee is rehired (within three years of the date that Form I-9 was originally completed) or when an employee changes his or her name.
    • Just as with the expiring Form, employers must retain the new Forms for three years from date of hire or one year from date of termination whichever is longer.

For employers using an electronic I-9 system, ICE’s position remains: “buyer beware;” each employer is ultimately responsible for ensuring system compliance. Therefore, please ensure your vendor is aware of this new release. Do not be afraid to ask the tough questions to ensure your vendors system is compliant with the regulations. We know that some vendors, including LawLogix, are aware of this development and have been diligently working to make sure the new I-9 Form is timely available on their system.

What Changes will Employers Face if Immigration Reform Comes to Pass?

Theres news this week that a bipartisan group of senators have unveiled a statement of principles for immigration reform, which in part proposes the creation of an effective employment verification system that prevents identity theft and ends the hiring of future unauthorized workers.  Further,  President Obama and the White House have released a Fact Sheet containing similar principles, including craking down on employers who hire undocumented workers through:

  •  mandatory, phased in electronic employment verification
  • creation of and required use of fraud-and tamper-resistant documents to prove employees authorization to work
  • increased penalties for employers who hire undocumented workers
  • protection for workers against retaliation for exercising their labor rights

I am generally not a fan of speculating.  When it comes to football games, like the BCS College Football Championship or the upcoming Super Bowl, I dont enjoy commentary about who people think will win.  Just play the game already!  So, I generally do not like to speculate on how the law might change.  Im more of a lets wait and see and then deal with it type of guy.

Neverthess, I cannot help myself from wondering what may be on the horizon for employers and worksite enforcement if comprehensive immigration reform occurs.  For example,

  • Will all employers be required to use E-Verify?  (In Alabama, that already is the law, but my guess is that there still is mass non-compliance and federal law and federal enforcement would change things quite a bit)
  • Will there be a new and improved electronic verification system?
  • Will increased enforcement and higher  penalties apply only to employers who knowingly hire unauthorized workers, or will the employers who just make paperwork mistakes on I-9s also be impacted?
  • Will this news further delay the release of the new two-page I-9 form?
  • Will employers have to become experts in detecting fraudulent documents as opposed to just making good-faith determinations about their authenticity?

Regardless of whether reform occurs or what it will ultimately entail, I believe the one thing we know for sure is government worksite enforcement is not going to let down, and if anything will increase.  So, employers should continue to make immigration compliance a priority and stay tuned for more changes and perhaps challenges.



How to Retain Original Hard Copy I-9s

Employers who  maintain their original I-9 forms in a paper file often struggle in creating and maintaining such a paper file.  Below are some suggestions:

1.  Keep your I-9 forms separate from other files such as personnel files.  In the event you are audited by ICE, you will have to produce your original I-9 forms within three business days.  Pulling each I-9 form out of a personnel file is very time-consuming.  Also, the required retention for I-9 forms (discussed further below) is likely different than the retention period for your personnel files.

2.  Create two I-9 form files one for active employees and one for terminated employees.  You will always need an I-9 form for an active employee.  In the active I-9 form file, put your I-9s in alphabetical order or some other order where you will be able to easily retrieve the ones you will need in the event of an audit.  Also, once an active employee is terminated, you will be able to easily move that employees I-9 form from your active I-9 form file to your terminated I-9 form file.

3.  In your terminated I-9 form file, create a folder for the current year and the next three years and then have separate folders for each month within each year.  For example, if you were to create a terminated I-9 form file today, you would have a folder for 2012, 2013, 2014, and 2015, each containing every month of the year.

4.  The retention requirement for I-9s is:  three years from date of hire or one year from termination, WHICHEVER IS LONGER.  Once you determine the retention requirement or date of destruction for each I-9 form for terminated employees, place that terminated employees I-9 form in the applicable month and year folder.  Once that month has passed, you can destroy those I-9s in that file.

You may hear others say that if you just keep I-9s for three years following termination, then you will be safe.  While this is technically true because under that method you would never destroy an I-9 form before its retention requirement has past, it best to not retain any more I-9s than you are legally required to keep.  All the I-9s forms in your possession  may  be subject to review during an audit, even if they are outside the retention requirement.

Finally, I suggest that you keep your I-9 form files confidential (e.g., locked up)  as they contain personal information about your employees.



Finally, Some Guidance on Electronic I-9s

Electronic I-9s, thanks to a Freedom of Information Act request from LawLogix, a memorandum from the Executive Associate Director of Homeland Security Investigations (HSI) that provides guidance to all HSI field offices on the collection of electronically generated I-9 forms and the minimum electronic audit trail requirements for use in contemplating civil fines was released to the public.

As background, every electronically generated or stored I-9, electronic I-9s must meet all of the requirements for electronic I-9 found in the regulations. One requirement is the form must be accompanied by an audit trail.   The HSI memorandum states in part that whenever an electronic Form I-9 record is created, completed, updated, modified, altered or corrected, a security and permanent record must be created (audit trail) that establishes the date accessed, who accessed it and what action was taken.  The HSI memorandum attaches a flow chart and example audit trial to illustrate the minimum acceptable standards for electronically generated I-9 forms.

The HSI memorandum also states that, in addition to the audit trail, special agents or auditors must request the name of the software product being utilized and any internal business practices and protocols related to the generation of, use of, storage of, security of, and inspection and quality assurance programs for the electronically generated Forms I-9.

Moreover, the HSI memorandum states that the employer being audited should provide the indexing system identifying how the electronic information contained in the Form I-9 is linked to each employee and documentation of the system used to capture the electronic signature, including the identity and attestation of the individual electronically signing the Form I-9, or electronic I-9s.

Finally, the HSI memorandum recommends that special agents or auditors request access to the electronic system for a demonstration of the generation of an electronic I-9 form.

What is the take away?  Recall that HSI has very clearly stated in the past that it would hold employers responsible for the mistakes and errors of their electronic I-9 vendors, buyer beware.  While HSI agents and auditors may not have dug into the dirty details of these systems during past audits, the days of employers getting a pass due to a lack of guidance or knowledge have past.  If an employer is unsure if its electronic I-9 vendors system is in compliance with this guidance and the applicable regulations, now is the time to find out.

If you would like a copy of this memorandum, please contact us and we will be happy to send it your way.

Issuance of New I-9 Form Delayed Employers Will Continue to Use Current I-9 Form Even After August 31 Expiration Date

USCIS recently announced that employers who were eagerly awaiting the release of the new I-9 Form will have to wait a little longer.  http://www.uscis.gov/i-9   But hold on a moment.  The current I-9 Form has an expiration date of 8/31/2012 printed in the upper right hand corner. So, what are employers supposed to do if a new form is not released by August 31, 2012?  Indeed, employers could get into trouble if they use expired I-9 forms.

Per USCIS, even after the current form expires on August 31, 2012, employers should continue to use the current I-9 Form until USCIS instructs otherwise.  USCIS instructions for the Form I-9 currently available on I-9 Central also indicate that the agency will accept the use of the prior version of the Form I-9 that bears a revision date of February 2, 2009.  (The February 2, 2009 I-9 Form has an expiration date of June 30, 2009.)

Why the delay? As announced in March of 2012, USCIS is in the process of updating and publishing a newly revised two-page Form I-9. When the comment period of the revisions was opened to the public, USCIS received a large number of comments over 3,000.  So, USCIS is taking a little longer than expected to absorb all these insightful comments.