USCIS Revises Form I-9 for All U.S. Employers

Today the U.S. Citizenship and Immigration Services published a revised version of Form I-9, Employment Eligibility Verification. Employers will be able to use this revised version or continue using Form I-9 with a version date of 11/14/16 N through September 17, 2017. On September 18, 2017, employers must use the revised form with a version date of 07/17/17 N.

Changes in the New Version

The Form I-9 instructions have been revised as follows:

• The words “the end of” have been removed from the phrase “the first day of employment.”

• The Office of Special Counsel for Immigration-Related Unfair Employment Practices has been changed in the I-9 instructions to reflect its new name, Immigrant and Employee Rights Section. Note that more information about this office is provided below.

The Form I-9 List of Acceptable Documents has been revised as follows:

• The Consular Report of Birth Abroad (Form FS-240) has been added as a valid List C document to confirm employment authorization. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.

• The new Form I-9 combines all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection C#2 in List C.

• All List C documents have been renumbered except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C will change from List C #8 to List C #7.

Form I-9 Background

As background, the Form I-9 has been used since 1986 for verifying the identity and work authorization of individuals hired for employment in the United States. Under the federal Immigration Reform & Control Act, all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form.

On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

Avoidance of I-9 Related Discrimination

Federal law prohibits national origin and citizenship status discrimination in hiring, firing, or recruitment or referral for a fee. Under the law, employers must also refrain from unfair documentary practices in connection with the Form I-9 and E-Verify employment eligibility verification processes. For example, employers are not permitted to ask for different or additional identity and employment verification documentation from new-hire employees who may look or sound different. The Immigrant and Employee Rights Section of the U.S. Department of Justice enforces the Form I-9 anti-discrimination provisions.

E-Verify

E-Verify is an Internet-based system administered by the U.S. government free of charge for registered employers. It is used to compare information from an employee's Form I-9 in real time against data from U.S. Department of Homeland Security and Social Security Administration records. This electronic verification confirms an employee’s identity and eligibility to work in the United States. E-Verify serves as a supplement to the Form I-9 process. Although E-Verify is mandatory in some state jurisdictions as well as for certain federal contractors, there is currently no federal requirement for all U.S. employers to use E-Verify. Information about E-Verify can be found here.

For more information or to discuss your company's I-9 and E-Verify compliance program, contact Eric Ledbetter at 312-715-5018/eric.ledbetter@quarles.com or your Quarles & Brady attorney.