Remember to Use New I-9 Forms Starting May 7, 2013

The federal government has released new I-9 forms that are required to be used by all employers beginning tomorrow, on May 7, 2013.  The new forms should be used only for newly hired employees.  As most employers are aware, the I-9 form is used to verify that a new hire is legally authorized to work in the United States.  A copy of the new I-9 form is available here.

While the new forms do not make significant changes in the verification process, there are a few differences.  Both the old and new forms have three sections:  Section 1 to be completed by the employee; Section 2 to be completed by the employer; and Section 3 to be completed if there is a need to re-verify an employee’s eligibility to work in the United States.  The new form also asks for an employee’s email address and telephone number so that Immigration and Customs Enforcement (ICE) and the Justice Department’s Office of Special Counsel (OSC) can conduct follow-up interviews of employees more easily when I-9 audits of employers are performed.  While the Bush administration appeared to target its enforcement activities against undocumented workers, the Obama administration seems more focused on targeting employers for work eligibility violations related to I-9 forms.  ICE and OSC have stepped up their enforcement actions during the past few years in targeting employers for I-9 violations.  ICE audits of employer I-9 forms have increased from over 250 in 2007 to over 3,000 in 2012, according to data provided by the Associated Press.

Additionally, the new form is now two pages instead of one page.  While the new form more prominently requires the employee to attest to his or her citizenship or immigration status (and thus eligibility to work in the United States), the two-page format may increase retention costs for larger employers, and may increase the risk that one or both pages of the I-9 form may be misplaced or lost, which is tantamount to a failure to complete the I-9 form.

Takeaway:  Be sure to start using the new version of the I-9 form no later than May 7, 2013.  The failure to use the correct form may subject an employer to liability if ICE conducts an I-9 audit.  With an increasing emphasis on employer I-9 audits by the current administration, it is more important than ever that employers ensure that I-9 forms are properly completed when an employee is hired.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on May 6, 2013, in Hiring, Immigration and tagged . Bookmark the permalink. Leave a comment.

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