All employers must verify the identity and authorization for employees to work in the United States. They do this by completing what is known as an I-9 form with each of their employees and retaining the form so that it is available for inspection by authorized government officials. As of January 22, 2017 employers are required to use a newly issued Form I-9 or they will face penalties (which have nearly doubled). Citizenship and immigration audits are expected to increase dramatically with the new administration’s focus on these issues. Employers should begin using the new forms and familiarize themselves with changes from the old forms in order to insure that they are in compliance. The new form can be accessed at: https://www.uscis.gov/i-9
The new form does not need to be used for existing employees but does need to be used for new hires beginning on January 22, 2017. There are three ways to complete the new I-9 form:
- Print it and fill it out manually.
- Fill it out electronically and then print and sign. The online fillable form is referred to as the “smart” form because it is interactive and moves the user along based on previous answers. The “smart” form does not qualify as electronic filing. The form must be completed online but then printed out and signed manually.
- Electronic filing. This filing requires the use of an electronic I-9 vendor. There currently is no direct government filing.
Although the new “smart” form is not a safe harbor against ICE enforcement and compliance, it is interactive so it may be useful as a learning tool. It asks questions, suggests possible answers and moves the user to the next appropriate section depending on previous answers. One drawback is that since it requires the employee to fill out the first section there could be issues with getting the employee to complete it in a timely fashion, or at all if they don’t have access to a computer. It will probably work best in situations where the company has a computer (and printer) available for new hires to complete their paperwork on when they first start work. The employer can then be sure that the new employee has access to the most current form and that it is completed immediately upon hire. It is very important that employers read the new instructions carefully as there are some changes that you will need to be familiar with. Employers will also need to be certain that the new employee fully understands what needs to be completed on the form and what they must present as verification. There is a listing on the last page of the form that suggests acceptable forms of verification. The list isn’t all inclusive but it offers a good rule of thumb. It is not up to the employer to scrutinize every document for authenticity. If the document reasonably appears to be authentic then it should be accepted. Employers need to be careful to not illegally reject valid documents or they could be exposed to liability for discrimination. Also, not every acceptable document is on the drop down menu. You may need to do some additional research if a document is presented that is not on the menu to see if that document is acceptable.
It is important to keep in mind that the employer representative who is verifying eligibility MUST be in the presence of the person being verified and must see the original verification documents. The representative is not allowed to verify electronically (such as through Skype or Facetime) so you cannot have your corporate HR personnel verifying documentation for employees in other States. You will need to have a representative available to verify documentation in each of your separate locations. Employers should familiarize themselves with immigration anti-discrimination laws to be sure that they are in compliance and that they are not illegally discriminating.
Joanne Audette, Esq.
WD & Associates, Inc.
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