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.   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.

The Most Common Errors Relating to I-9 Forms

After assisting employers in auditing thousands of I-9 forms and in improving their immigration-related policies and practices, I have observed some common errors that employers historically have made.  Some of the process errors or issues include:

  • Failing to properly train those employer representatives who are responsible for ensuring the completion of a timely and properly completed I-9 form.
  • Failing to have a written policy that outlines the responsibilities of appropriate management and human resources relating to immigration compliance.
  • Failing to take precautions to ensure that the employers contractors and subcontractors are complying with their obligations relating to the I-9 form.

Other  errors are related to the completion of the I-9 form itself, which include:

  • Missing I-9s for current employees or for terminated employees during the applicable retention period.  The retention period is three years from date of hire or one year from date of termination, whichever is longer.
  • Using expired I-9 forms.  Employers must ensure they are using the most current version of the I-9 form.
  • Using the Spanish version of the I-9 form, except where it is allowed (Puerto Rico).
  • Completing the I-9 form late.  The employee must complete section 1 of the I-9 form on or before the first date of hire.  The employer must complete section 2 of the I-9 form within three days of the date of hire.
  • Failing to ensure that the employee signs and dates section 1.
  • Accepting documents that are not on the list of acceptable documents.  For example, accepting a hospital-issued birth certificate as a list C document, when only government-issued birth certificates are listed as acceptable birth certificates in  list C.
  • Accepting expired documents, such as an expired passport or drivers license.
  • Failing to write in the hire date.
  • Failing to ensure that the employer representive who examined the original documents signs, dates and completes every portion of section 2.

In sum, attention to detail and a commitment to immigration compliance is the key.  Employers who have historically ignored these issues benefit greatly from obtaining assistance in cleaning up the past as best as possible in accordance with acceptable correction procedures and in creating  an environment of immigration compliance to move forward.  Ive seen it done many times, and employers who do it rest better at night knowing that they will be ready if audited by ICE.