Employers have until Jan. 22, 2017, to get up
to speed on using the newest version of the Form I-9, marked 11/14/2016. The
version that has been in effect since 2013 (marked 03/08/13) will become
obsolete on that date. The new form can be accessed on the U.S. Citizenship and
Immigration Services (USCIS) website.
Failure to use the new form beginning Jan. 22
will expose organizations to penalties, which
were recently nearly doubled.
“With a new administration coming in we
have a lot of indications that ICE [Immigration and Customs Enforcement] audits
will increase, new investigation officers will be hired and enforcement in this
area will get a lot of focus,” said Cynthia Lange, managing partner of
immigration law firm Fragomen’s Northern California practice in San Francisco.
“Employers will find that the Form I-9 in
many ways is very similar to the previous version, but some individual fields
and the form instructions have been revised,” said Katie Nokes Minervino,
an immigration attorney in the Portland, Maine, office of law firm Pierce Atwood.
“The core requirements of the form have not changed,” she added. The
acceptable documents list and retention requirements have remained the same.
Employers are not required to use the new I-9
on existing employees—one of the most common queries after a new version of the
form is released, said Dave Basham, a senior analyst in the verification
division at USCIS.
There are now three ways for users to complete
the Form I-9:
- Print it and fill it out manually, pen to paper.
- Fill it out electronically, then print and sign it.
Take note that using the online “smart” version of the form does
not qualify as a compliant electronic I-9. If the online fillable version
is used, it must be printed and signed pen to paper.
- Use an electronic I-9 vendor.
Employers using electronic I-9 systems should
not experience any direct impact with this form change, Lange said. Electronic
systems should simply update the form.
If relying on a vendor, employers should
compare the electronic product and the fields and requirements of the new I-9
version to ensure the vendor is collecting all the necessary information, added
Pierce Atwood immigration attorney Tony Derosby, also in the Portland office.
Using the ‘Smart Form’
The newest version of the I-9 has been dubbed
a “smart I-9” because of the fillable, interactive PDF option that
enables users to fill in the fields of the form online before printing and
signing a hard copy.
“The form substitutes for training and
helps guide people to not make the same mistake over and over again,”
Lange said. But she reminded employers that the smart form is not a safe harbor
against ICE enforcement, is not integrated with E-Verify nor other HR systems,
and cannot store information nor enable reporting.
There’s also no requirement that employers use
the smart form at all. Or, the smart form can be partially filled out online
before being printed, finished and signed.
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