On March 8, 2013, the U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9. Although employers should begin using the March 8, 2013 dated Form I-9 immediately, older forms dated Feb. 2, 2009, and Aug. 7, 2009, will be accepted until May 7, 2013. After May 7, 2013, only the March 8, 2013 form will be accepted.
Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers are required to ensure proper completion of Form I-9 for each individual hired for employment in the United States. This requirement applies to citizens and non-citizens.
The employee must complete Section 1 of Form I-9 no later than the first day of employment. Section 1 includes an employee attestation as to his employment authorization that the employee must also complete. In addition, the employee must provide the employer with acceptable documents evidencing identity and employment authorization. Form I-9 includes a list of acceptable documents. The employer cannot specify which document(s) it will accept from the employee. The employee must also sign and date Section 1 of Form I-9. In doing so, the employee is attesting that the citizenship or immigration status he selected is correct and that he is aware that he may be imprisoned and/or fined for making false statements or using false documentation when completing the Form I-9.
The employer must examine the original employment authorization and identity document(s) to determine whether the document(s) reasonably appear to be genuine and relate to the employee. The employer must examine these documents within three business days of the employee’s first day of employment. The employer is responsible for completing Section 2 of Form I-9 and recording the document information, including document title, issuing authority, document number and expiration date (if any) from the original document(s) the employee presents. The employer must insert the employee’s first date of employment under Certification of Section 2 and complete this section with the name and title of the person completing Section 2, and the employer’s business or organization name and address.
Employers may also have to complete Section 3 of Form I-9 if the employee provides an employment authorization document that includes an expiration date, which is noted in Section 1, such as Form I-766, Employment Authorization Document, or a two-year conditional permanent resident card. The employer’s obligation to complete Section 3 is on or before the expiration date provided in Section 1. The employer should not reverify U.S. citizens or non-citizen nationals or lawful permanent residents who present a Permanent Resident Card (Form I-551) for Section 2. Likewise, reverification does not apply to List B documents that are presented to establish identity. For reverification, an employee must present an unexpired document from either list A or List C showing he is still authorized to work. An employer cannot require the employee to present a particular document from List A or List C.
If an employer rehires an employee within three years of the date Form I-9 was originally completed, the employer has the option of completing a new Form I-9 or completing Section 3 of the original Form I-9. When an employer is completing Section 3 in either a reverification or rehire situation and the employee’s name has changed, the employer needs to record the name change in Block A.
Employers may, but are not required to, photocopy the document(s) presented. If photocopies are made, they should be made for all new hires and reverification. Photocopies must be retained and presented with Form I-9 in case of an inspection from DHS or other federal government agency. Making photocopies of an employee’s document(s) cannot take the place of the employer’s obligation of completing Sections 2 and 3 of Form I-9.
Employers should maintain an employee’s Form I-9 in a central I-9 file and separate it from the employee’s personnel file. The employer should have a Form I-9 for every employee. The employer is required to maintain an employee’s Form I-9 for three years after the date employment begins or one year after the employee’s termination, whichever is later.© Copyright 2013 Armstrong Teasdale LLP. All rights reserved