On January 31, 2020, the U.S. Citizenship and Immigration Services (USCIS), which operates under the Department of Homeland Security (DHS), announced and made available a new version of Form I-9 (Rev. 10/21/2019), Employment Eligibility Verification. Employers may begin using the new form as of January 31, 2020 but must use this form exclusively no later than May 1, 2020 for all new employees or where any reverification applies. The previous version, which has a revision date of “Rev. 07/17/2017 N,” will be invalid as of April 30, 2020. After April 30, 2020, employers who fail to use the new Form I-9 may be subject to penalties under the Immigration and Nationality Act.
The new Form I-9 is available here www.uscis.gov/i-9. Employers may order paper Forms I-9 at www.uscis.gov/forms/forms-by-mail.
Background
Employers are required to properly complete Form I-9 for each individual they hire for employment in the U.S. An employer who fails to ensure proper completion and retention of Forms I-9 may be subject to monetary penalties and, in some cases, criminal penalties. Employers must maintain Forms I-9 during the employment and after termination for three years after the date of hire or one year after the date the employment ended, whichever is later.
Employers must make Forms I-9 available for inspection upon request by officers of the DHS, the Immigrant and Employee Rights Section of the Department of Justice’s Civil Rights Division, and the Department of Labor. Violations associated with Forms I-9 are typically uncovered following a DHS worksite raid, audit, or random inspection.
Employers must ensure that all pages of the Form I-9 instructions and List of Acceptable Documents are available, electronically or in print, to all employees completing Forms I-9.
Exceptions to the Requirement to Complete and Maintain Forms I-9
Employers are not required to complete Form I-9 for:
- Causal domestic service employees working in a private household when the work is sporadic, irregular or intermittent;
- Independent contractors for whom the employer does not set work hours or provide tools to do the job; or
- Employees working outside the United States.
Employers should speak to their employment law counsel for assistance in determining whether a worker is truly an independent contractor.
What has Changed on Form I-9?
USCIS added Eswatini and North Macedonia to the County of Issuance field in Section 1 and the foreign passport issuing authority field in Section 2 per those countries’ recent name changes. This change is only viewable on the online fillable version of Form I-9. This is the only change to the form itself. The remaining changes are found in the form instructions.
In the Form I-9 instructions, USCIS clarified who can act as an authorized representative on behalf of an employer. Specifically, the employer may designate any person as an authorized representative to act of its behalf to complete Section 2. This makes remote hiring more feasible. However, the employer is liable for any violations committed by the person designated by the employer in connection with the completion of the Form I-9 or the verification process.
USCIS updated the DHS Privacy Notice to employees, which is included in the form instructions. The major change to the Privacy Notice is the notification that Form I-9 may be made available for inspection, and that DHS may also share the information on the form, as appropriate, for law enforcement purposes or in the interest of national security.
USCIS also updated its website address and provided minor acceptable document clarifications in the form instructions. The new instructions indicate that the List C Employment Authorization Document issued by DHS (List C, item 7) “does not include the Employment Authorization Document (Form I-766)” from List A. USCIS also added a new instruction noting that the List B, “ID card issued by federal, state, or local government agencies or entities, listed as B2,” does not include the “Driver’s license or ID card issued by a State or outlying possession of the United States” described in B1 of the List of Acceptable Documents.”
As a reminder, employers cannot specify which documents the employee may present to establish employment authorization. The employer must allow the employee to choose from the List of Acceptable Documents.
Employers Should Not Complete the New Form-I-9 for Most Current Employees
Employers should not complete the new Form I-9 (Rev. 10/21/2019) for current employees who already have a properly completed Form I-9 on file, unless reverification applies. Performing unnecessary verifications could result in unfair documentary practices or violation of the Immigration and Nationality Act’s anti-discrimination provision. California employers who engage in unnecessary reverifications may violate California Labor Code section 1019.2, which prohibits unfair immigration-related practices, including reverifying the employment eligibility of a current employee at a time or in a manner not required by specified federal law. A violation under Labor Code section 1019.2 is subject to a maximum penalty of $10,000 per violation.
Please contact the authors, Susana P. Solano at (916) 923-1200 or Susan M. Steward at (562) 653-3200, or your employment law counsel for any questions regarding Form I-9.
©2020 Atkinson, Andelson, Loya, Ruud & Romo
