Since the previous version of Form I-9 expired, on August 31, 2019, employers have had many questions regarding the use of the new version. Do your existing employees need to complete the form again? Can the older version still be used, and on what basis?
As expected, some of these issues have created a lot of confusion, given that employers are expected to use only non-expired (current) government-issued employment forms.
On Jan 31, 2020, the US Citizen and Migration Services published a federal register notice for form I 9 announcing an updated version, which had earlier been approved by the Office of Management and Budget.
The revised I 9 Form 2020, was made available for use by the public since its publication. However, irrespective of the new release, some employers continued using the older version (Rev. 07/17/2017 N). According to the Citizenship and Migration Department, that was okay until April 30, 2020. From that date henceforth, employers can only use the new form (Rev. 10/21/2019) as the previous version will be considered invalid.
The USCIS had allowed the use of the older version, despite the new version having been published, for one main reason. They saw it reasonable to give employers enough time to perform the necessary updates and fine-tune their recruitment processes accordingly.
Form I 9 is used by HR managers and employers to authenticate the identity and employment eligibility of employees in the country. Workers are required to provide information about their identity as well as documentation that supports and proves their employment eligibility.
Employees should complete the first section of the I-9, while employers fill out the rest of the sections (sections two and three).
Employees appointed on or before Nov 6, 1986, are usually not needed to fill out the employment form. Employees residing in the Commonwealth of Northern Mariana Islands (CNMI) are also not required to complete the 1-9 if they were employed on or before Nov 27, 2009.
To some, changes made to the older I-9 form may be deemed as minor; however, changes to the instructions are very critical. They include:
Lastly, I 9 Form 2020 come with smart features that aim to minimize errors during completion. However, according to some employers, these features have created problems when it comes to downloading the form.
A number of them claim that they are getting difficulties downloading or opening the form, which was not the case with the older version. In an effort to address this issue, the Citizenship and Immigration Service created a simple version of the I-9, free of the smart features.
HR managers and employers can now download the two versions from the following sources:
Documents from “List B” used to establish identity:
U.S I Identity Card or Driver’s license. This card should contain a photograph and info such as gender, date of birth, name, address, eye color, and height.
Documents from “List C” only establish employment eligibility. They include:
Again, keep in mind, employees must present valid, unexpired, and original documents to employers. However, if an employee has not yet been issued with an original copy of a particular document, he/she can present an official receipt in its place. Check the USCIS website to learn more about the acceptable receipts.
That said, employers are also required to authenticate the submitted documents by ascertaining whether the documents “convincingly appear to be legitimate.” If a document appears to be invalid, an employer has every right to reject it and request for valid alternatives.
When employers enlist the services of a remote employee, they must ensure that there is conformity with all the I-9 requirements.
But employers cannot be physically present to verify employees’ documents, like in the situation of remote employees. What should then be the way forward? Generally, they are allowed to appoint authorized representatives to complete the I-9 on their behalf.
These authorized representatives need to conduct all the responsibilities associated with the I-9 form. Meaning, they have to physically and carefully examine the documents to establish if:
Note; as per the law, reviewing documents through webcam is unacceptable. Also, according to the Citizenship and Immigration Service, employers remain answerable to any infringement related to I-9s, even where authorized reps complete the forms. As such, employers should be familiar with all Form 1-9 requirements and ensure their representatives are following the stipulated protocols.
As per the norm, I 9 employment form verification process calls for employers to authenticate a new hire’s documents, in person, no later than three days of hire. However, given the Coronavirus (COVID-19) outbreak and the majority of companies encouraging their employees to work from home, the in-person document assessment procedure mandated by the authorities is undoubtedly becoming a challenge.
So, how can employers implement social distancing and still conform to the I-9 regulations?
On March 20, 2020, the DHS and Immigration and Customs Enforcement (ICE) posted updated guidelines on filling I-9 forms during the Coronavirus outbreak.
According to the new guidelines, employees and employers still need to complete the I-9s by the usual closing date (1sta / 3rd day of hire, respectively). That said; employers, who have new hires taking physical distancing precautions due to COVID-19, can review employment eligibility documents via electronic means such as email, fax, or video conferencing.
This is usually not the norm. Remember, we had earlier said that verification via webcam is unacceptable. But they say; extraordinary times call for extraordinary measures, and this new guideline fits the situation.
Additionally, according to the new guidelines, employers should enter the phrase “COVID-19” as the grounds for delay in physical inspection in the SEC 2, additional information field. When the employer recommences normal operations, he/she should, however, assess the documents in person, then note-down at the additional information box in SEC 2 of the form, that “documents physically examined.” Also, they should annotate the date the physical examination took place.
Lastly, it is worth understanding that these new guidelines remain effective until May 19, 2020, or until the termination of the national emergency, whichever comes first.
There has been some confusion surrounding the difference between E-Verify and Form I-9. First, E-Verify should not be a stand-in for the I-9. Actually, the I-9 form is the core of the E-Verify process.
E-Verify is a free federal service, which compares the details presented by the employee on 1-9 with information from the Social Security Administration, Department of Homeland Security, and some instances, the Department of Motor Vehicle.
Using E-Verify, should also not excuse employers and HR managers from not completing and retaining I-9 forms, but be considered as additional security in the event of an audit by the relevant authorities. In short, E-Verify is regarded as a good faith effort to ensure all employees are eligible for employment.
With more employers adopting modern technology, there are fears about whether it is legal to sign documents or store some documents electronically. Generally, with enactment of the UETA and ESIGN act some years ago, electronic signatures are afforded the same validity and weight as traditional wet-ink signatures.
However, given the strict guidelines employers must adhere to when completing the I-9s, is the process of involving e-signatures even legal?
Yes! Electronic signatures provide one of the safest and legitimate ways of obtaining and signing the 1-9s. But there are some requirements to be fulfilled before one can use an e-signature on these onboarding forms.
If you wish to complete the I-9 electronically, your electronic signature system must allow signatories to admit that they read and understood the attestation, as well as the entire process of attaching the e-signature to an electronically completed I-9. The e-sign system must also:
Foxit eSign aka eSign Genie’s signing software satisfies the USCIS’s requirements when it comes to electronic signature creation, security, and retention of the I-9s. This paperless solution allows employers to create, view, and store the I-9s effortlessly. Other benefits include:
Employers must abide by the regulations set out by the Citizenship and Immigration Service when storing, retaining, and updating the I-9 employment forms. Below are some of the responsibilities that should be met by employers and HR managers:
Upon inspecting I-9s for compliance, ICE’s auditors and agents may find procedural or technical violations. In such a case, an employer is allowed to make corrections within ten days.
However, if an employer does not make the corrections as required, he or she may be subject to:
While this post mostly highlights areas of compliance for the I-9 forms, there are other notable guidelines employers should comply with when verifying employee’s eligibility and identity.
As you have read, failure to comply may result in severe penalties. Therefore, employers are encouraged to use the most recent I 9 Form for all new hires and to regularly review the relevant instructions as well as the USCIS handbook for employers
19925 Stevens Creek Blvd, Suite 100
Cupertino, CA 95014