Employers Required to Use New Form I-9

As of January 22, 2017, employers are required to use the new Form I-9 issued by the U.S. Citizenship and Immigration Services (USCIS). A link to the new form can be found here. Employers who fail to use the updated form can be subject to fines and penalties, which nearly doubled in 2016 (the minimum fine is $216 for each noncompliant Form I-9 and can escalate to $2,156 per form). The USCIS also updated the accompanying instructions, which can be found here.

The Form I-9 has been dubbed a “smart I-9” because it is a fillable PDF with various interactive features. The form has different drop down menus and question marks that, when the cursor hovers over them, provide guidance.

Notwithstanding the new smart I-9 features, the Form still can be completed in good old fashioned paper format. In fact, employers should be aware that once the form is completed (whether electronically, in paper form, or some combination of both), it must be printed and signed in paper format unless employers use an electronic I-9 vendor.

While the acceptable list of verification documents remain the same, some new requirements have been added. For example, users are required to enter N/A in any fields that previously could have been left blank. If no preparer or translator assists in the completion of the Form, employees now must affirmatively check a box indicating that no preparer or translator was used. Going forward, all required reverifications must use the new Form I-9 and be affixed to the original Form I-9.

Given that one of the expected areas of focus for the new Trump administration will be immigration, employers would be well-advised to consider conducting an I-9 self-audit to assess and remediate any violations. The potential uptick in worksite enforcement (which already has been on the rise over the last several years) coupled with the significant increase in potential fine amounts (employers found to have knowingly hired an unauthorized alien for employment in the United States can be fined from $530 to $21,563 for each unauthorized alien) means that I-9 compliance should be on employer radar screens.

For information on the new Form I-9 or on conducting an I-9 compliance audit, please contact Andrea M. Kirshenbaum at 215-587-1126, or akirshenbaum@postschell.com, or any member of Post & Schell’s Employment & Employee Relations Practice Group.

Disclaimer: This EFlash does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this EFlash without first seeking the advice of counsel.

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Andrea Kirshenbaum

Andrea M. Kirshenbaum is a Principal in the Firm's Employment & Employee Relations and Wage and Hour Practice Groups. She focuses her federal and state court defense litigation practice on employment collective & class action litigation, including wage & hour collective & class actions, employment litigation, including Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, Equal Pay Act, Family & Medical Leave Act, ERISA, 42 U.S.C. Sections 1981 & 1983, and state and local law, public accommodation litigation under Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and state law, Department of Labor, Wage & Hour Division investigations, trade secret and covenant not-to-compete litigation, and federal and state administrative agency litigation.

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