Employers Must Use New I-9 Form

By: Shelbie J. Byers, Drewry Simmons Vornehm, LLP

Federal law requires that every employer who recruits, refers for a fee, or hires an individual for employment in the U.S. must complete Form I-9, Employment Eligibility Verification (“I-9”).  Effective January 22, 2017, employers are required to use a newly updated I-9 form.  The new I-9 can be found at the U.S. Citizenship and Immigration Services website, www.uscis.gov, and may be filled out manually, electronically or through an approved electronic I-9 vendor.  Employers must use the version dated 11/14/2016, which is noted in the lower left hand corner of the form, to verify the identity and work eligibility of every new employee or for the reverification of expiring employment authorization of current employees going forward.  Employers who do not use the updated form after January 22, 2017 could be subject to penalties, which were recently nearly doubled, pursuant to the Immigration and Nationality Act (“INA”).  INA is enforced by U.S. Immigration and Customs Enforcement (“ICE”).  Having incomplete or inaccurate I-9 forms can be considered a violation per form.  For a first-time offense, the minimum fine is $216.00 per form and a maximum of $2,156.00 per form.  Penalties significantly increase for second and third time violations.  Given the promises and platform of President Trump during the 2016 election, it is likely employers will see an upswing of enforcement actions by ICE, including unannounced cite visits to verify I-9 compliance.  Going forward, make sure all your organization’s onboarding documents, including the new I-9, are up-to-date.  Employers must still comply with the recordkeeping and retention requirements previously in place for I-9 forms, either three years from the date the employee first started working, or one year following the employee’s termination of employment – whichever is longer.  Employers can also benefit from a self-audit of their employment records to ensure compliance with all federal and state laws.