The United States Citizenship and Immigration Services (USCIS) and the United States Immigration and Customs Enforcement (ICE) have updated the Employment Eligibility Verification Form (Form I-9) as of November 14, 2016. Employers are required to start using the new form as of January 22, 2017. The purpose of the new changes is to reduce error and facilitate completion using a computer.
Changes to the I-9 Form
The revised form changes Section 1 which asked for "other names used" to "other last names used", making it simpler for foreign nationals to complete the form. The changes also makes it easier to complete the form online with enhanced drop-down lists and calendars for filling in dates. Some of the other changes include:
- Prompts to ensure information is entered correctly
- Ability to enter multiple preparers and translators
- An area for additional information
- A supplemental page for the preparer/translator
History of the I-9 Form
The I-9 Form became an employment requirement in November of 1986 when President Ronald Reagan signed the Immigration Reform and Control Act (IRCA) into law. The IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization. This goal is accomplished by the use of the I-9 Form.
The I-9 Form and the verification system has undergone changes over the years. Most of these changes have been to streamline the system and improve methods for confirming employee eligibility. In 1997, a program was initiated that allowed employers to verify social security numbers over the telephone and to transmit data via computer to the INS. This verification program for the I-9 Form was renamed E-Verify. In 2007, E-Verify began to require photo matching of the documents already on file with the documents provided on the I-9 Form. In 2008, information began to be shared with Immigration and Customs Enforcement (ICE) regarding the misuse, abuse, and fraudulent use of E-Verify.
In 2011, a program was launched to enable states to validate the authenticity of the driver's licenses presented as identification for the I-9 Form. In the same year, the E-Verify Self Check initiative was launched, so that individuals could check their employment eligibility prior to filling out the I-9 Form.
Since then, E-Verify has strengthened its fraud alert system for I-9 Forms, by identifying fraudulent use of social security numbers (SSN) and expanding services for employers. Through the use of E-Verify, the I-9 Form has been redesigned for more computer friendly use. It is now possible to access E-Verify from a mobile device.
Completion of the Form
Every employee hired after November 6, 1986 must complete an I-9 Form no later than the first day of employment, but not before accepting a job offer. The employee completes Section 1 of the form providing basic information such as name, address, birth date, social security number, email address and telephone number. The email and telephone number will be used to tell the employee if there are any problems with the information on the form. Instructions for completing the form are provided on the Instructions for Form I-9 Employment Eligibility Verification form available from the U.S. Citizenship and Immigration Services website.
The employer then completes Section 2 of the form within three days of the employee's first day. They must physically examine documents from the acceptable document list, which are identified on the form. The employer cannot specify which documents, that choice is for the employee to make. As long as the employee presents documents from the acceptable list and they appear to be genuine, the employer must accept them. The employer must attest under penalty of perjury that they have examined the documents, that they documents appear to be genuine, and to the best of their knowledge the employee is authorized to work in the United States.
If applicable, an employer is required to complete Section 3, which applies to reverification and rehires. Reverification applies to foreign workers who have expiration dates on their employment authorization documentation. It does not apply to U.S. citizens. Reverification is never required for U.S. citizens or noncitizens nationals. Section 3 is also used if an employee is rehired within three years from the date that the I-9 Form was completed. This can be done by completing Section 3 without filling out a new form. It is also at the employer's discretion to simply have the employee complete a new form. If more than three years have passed when the employee is rehired, then a new form must be completed. Detailed information for employers is contained in U.S. Citizenship and Immigration Services, Handbook for Employers M-274.
Retention of the Form
The I-9 Form is not filed with the USCIS or any government agency. It must be retained by the employer and made available for inspection. The form and any attachments are required to be kept for either 3 years after the date of hire or 1 year after the employment has ended. The form can be completed on-line, but must be printed and signed manually, after that the document can be scanned and an electronic version kept as long as it is in accordance with 8 CFR 274a.
It is now also possible to complete the I-9 Form on the computer and to sign the form electronically by following the procedures in 71 CFR 34510. Care must be taken to ensure that the system to capture the electronic signature includes a method to acknowledge that the form has been read by the signatory. Records verifying the identity of the person producing the electronic signature must be created and preserved. A printed confirmation of the transaction must be provided to the person signing the document. It should be noted that if the procedures are not complied with, the I-9 Form will be deemed incomplete and the employer may be subject to fines.
The USCIS is concerned that the I-9 Form will be used to discriminate against individuals. They have provided a reminder at the top of the form stating that it is illegal to discriminate based on a person's citizenship, immigration status or national origin. The USCIS has also become aware that the form could also be used to discriminate based on the employee's age. If an employer discriminates against an employee based on information obtained from the I-9 Form, the employer may be in violation of federal law and subject to civil penalties and be required to pay back pay to the employee.
Information is provided on the instruction sheet for the form regarding Immigrant and Employee Rights. There is also contact information for the Department of Justice, if an employee is suspicious that refusal to hire or continue to employment is based on the documentation presented for the I-9 Form.
There is an electronic system (E-Verify) that employers can use to verify the eligibility of their employees for work in the United States. E-Verify is free and provides instant employment eligibility verification. An employer is required to enroll in E-Verify. Once enrolled, the employee and the employer compete the I-9 Form. The employer then uses E-Verify system to confirm the I-9 Form information. An initial result is provided within minutes. If there is an issue, E-Verify will use the email and phone number information for the employee to communicate with them regarding errors or anomalies with the forms. Employees who are concerned can use a Self-Check available through E-Verify to check their government records before completing the I-9 Form. The Self-Check is completely private and only the employee will have access to the results.
The core of the employment eligibility system still rests on the shoulders of the employer as they are the ones required to verify identification documents. The key features of the system are: making sure the I-9 Form is completed within the time limits; that documents are scrutinized and judged for authenticity; and that records are maintained for three years.