10 I-9 questions to ask before they cost you
The new Form I-9 is here, and you’ve got until September 18, 2017 to transition to the new form. And while this latest round of changes may seem insignificant, any change to the Form I-9 can impact whether or not your business is compliant.
To keep you up-to-date on the latest I-9 requirements—and keep you from having to translate the government’s M-274 Handbook for Employers—we’ve asked U.S. Immigration Law attorney, Curtis Y. Chow, of Ogletree Deakins to walk through the most common I-9 questions and the right answers that’ll help you avoid making costly Form I-9 mistakes.
1. Where can I access a copy of the new Form I-9 and when do I start using it?
The new Form I-9 was issued on July 17, 2017 and is available on the USCIS website. Employers can start using the new form immediately after it’s issued but must transition to the new form on and after September 18, 2017 to avoid the risk of costly I-9 paperwork penalties and fines.
Automated I-9 solutions—like the built-in I-9 and E-Verify tools in Snagajob’s hiring platform, PeopleMatter HIRE™—automatically updates with the latest employment verification requirements and form can help you easily complete, store and access all of your hiring paperwork online, including the latest version of the Form I-9.
2. What’s changed on the most recent Form I-9?
The new Form I-9 has only a few minor updates, including revisions to the list of I-9 Acceptable Documents and the I-9 instructions. We’ve broken down all of the recent changes in this post.
3. Can we leave the “email address” section blank if the employee doesn’t have one or do we have to write out “not applicable”?
The instructions to the new I-9 form state that providing an e-mail address is optional; however, the field cannot be left blank. If an employee does not have an e-mail address, or does not wish to enter an e-mail address, the employee must enter “N/A” in the e-mail address field of Section 1.
4. Who is required to use E-Verify?
Pursuant to the federal enabling legislation, E-Verify is voluntary for employers. However, several states have passed laws requiring some employers to use E-Verify. As of August 2017, states with enacted legislation requiring most employers to use E-Verify include: Arizona, Alabama, Georgia, Mississippi, North Carolina, South Carolina, and Utah. Several other states have more limited legislation in place requiring the use of E-Verify for public employers and/or public contractors.
In addition to E-Verify requirements imposed by certain states, E-Verify may also be mandatory for certain federal contractors. Pursuant to a presidential Executive Order on June 6, 2008, and subsequent Federal Acquisition Regulation rule effective September 8, 2009, all federal agencies and departments entering into contracts meeting certain criteria are required to include an “E-Verify Clause” within the contract requiring the contractor’s (and/or subcontractor’s) use of E-Verify. Thus, employers with federal contracts (or subcontracts) which contain an E-Verify clause are required to use E-Verify.
For the latest breakdown of E-Verify requirements by state, check out LawLogix’s E-Verify map.
5. If an employee is rehired on or after September 18, 2017, will I need to fill out a new form?
Employers who rehire an employee within three years from the date their I-9 form was previously completed, have the option of either 1) relying on the employee’s previously executed I-9 form, or 2) completing a new one. In general, the rules for relying on the previously executed I-9 form are as follows:
- If an employee remains work authorized as indicated on the previous I-9 form, no additional documentation is generally required. In these instances, the employer should record the employee’s rehire date in Section 3, along with any name changes, and sign and date the form.
- If the employee’s work authorization has expired as indicated on the previous I-9 form, the employer must reverify employment authorization in Section 3 in addition to providing the rehire date. If the previously executed I-9 form is not the current version of the form, Section 3 must be completed on the current version of the form. Where reverification is necessary, the employee must provide any List A or List C document they choose from the List of Acceptable Documents for the most current version of the I-9 form.
- If Section 3 has already been used on the employee’s previous I-9 form, an employer may complete Section 3 on a new current version of the I-9 form and attach it to the previously completed form.
Although Form I-9 rules permit the completion of Section 3 of the previously completed I-9 form in these instances, as a best practice, many employers will opt instead to complete a new I-9 form with each rehire. Doing so may provide a greater degree of consistency in treatment of employee hires/rehires, while also reducing the administrative burden of the employer to maintain (and train personnel to follow) a separate “rehire” process for I-9 completion.
6. What do we do with the previous Form I-9s when they are replaced with a new one?
Previously completed I-9 forms should be retained in accordance with I-9 document retention requirements (i.e., whichever is later of: 1) three years from the date the employee began work for pay, or 2) one year from the date of termination).
7. If I want to transition from paper to an electronic form management tool, how do I move my old employees to the new system?
Employers may rely on a paper system, an electronic system, or a combination of both types of systems to retain I-9 forms. Thus, it is permissible for retain historical I-9 records on paper, and create new I-9 records electronically, or to convert paper records to electronic format. If converting paper records to electronic format, such records will need to comply with all electronic storage rules for I-9 forms and storage systems, including:
- Controls to ensure the integrity, accuracy and reliability of the electronic generation storage system.
- Controls to detect and prevent the unauthorized or accidental creation, deletion, modification/addition, or deterioration of electronically completed stored I-9 forms.
- Audit trail controls so that any alteration or change to the form is recorded and can be accessed by an appropriate government official upon inspection.
- An inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored I-9 forms.
- An indexing system that is, at the minimum, functionally comparable to a reasonable hardcopy filing system.
- A high degree of legibility and readability when displayed on a video display or reproduced on paper.
8. How can employers prove that the employee was the one to electronically sign Section 1?
The use of electronic signatures requires that the system used to capture the electronic signature include a method to acknowledge that the attestation to be signed has been read by the signatory and attach or logically associate the signature with an electronically completed I-9 form. Moreover, the system must affix the signature at the time of the transaction, create and preserve a record verifying the identity of the person producing the signature, and provide a printed confirmation of the transaction to the signatory upon the signatory’s request.
Thus, a compliant electronic I-9 solution should create a record of both the signature, as well as validation of the identity of the signatory.
9. Are penalties issued per I-9 or if one is incorrect are all considered incorrect?
I-9 penalties are issued per I-9 form containing a finable error. Penalties are adjusted annually for inflation, and as of January 27, 2017, range from $220 to $2,191 for paperwork violations, and $548 to $21,916 for each instance of unauthorized employment.
Where a penalty falls within these ranges depends on whether the penalty is the result of a first-time offense versus subsequent offense, as well as the percentage of violations relative to the size of the workforce.Aggravating or mitigating factors may further include the size of the business, the employer’s demonstration of good faith compliance, the seriousness of the violations, the presence of unauthorized workers on the employer’s workforce, and the employer’s historical compliance track record.
10. Do we need to have our current employees fill out a new I-9 form?
No, the requirement to use the new I-9 form only affects new hires or rehires taking place on and after September 18, 2017. Absent special circumstances, an employer is generally not required to complete a new I-9 form for existing employees following issuance of a new version of the I-9 form.
Still have Form I-9 questions?
For more info about the recent Form I-9 changes, and how it impacts your hiring process, and answers to more common I-9 questions, check out our on-demand version of the “2017 New Form I-9 Changes” webinar, featuring Curtis Y. Chow of Ogletree Deakins.
Struggling with I-9 compliance? Fully-integrated I-9 and E-Verify tools in hiring software like Snagajob’s automatically update to reflect any changes to I-9 paperwork or verification requirements—taking the burden of keeping up with changing I-9 requirements off of you and your managers and helping to ensure a consistent, compliant hiring process in every location, every time.