USCIS Releases New Form I-9 and Instructions

On March 8, 2013, USCIS released a new Employment Eligibility Verification Form I-9. Employers are required to use the Form I–9 to verify the identity and employment authorization eligibility of their employees. We are providing this update for U.S. employers to notify them of the changes and updates in connection with the release of the new form.

Structure of Form I-9

Form I–9 contains three sections.

Section 1. The purpose of Section 1 of the form is to collect, at the time of hire identifying information about the employee, and for the employee to attest to whether he or she is a U.S. citizen, noncitizen national, lawful permanent resident, or alien authorized to work in the United States. The employee must also present documentation for review evidencing his or her identity and authorization to engage in this employment.

Section 2. The purpose of Section 2 of the form is to collect, within 3 business days of the employee’s hire, identifying information from the employer and information regarding the identity and employment authorization documentation presented by the employee and reviewed by the employer.

Section 3. The purpose of Section 3 of the form is to collect information regarding the continued employment authorization of the employee. This section, if applicable, is completed at the time that the employee’s employment authorization and/or employment authorization documentation recorded in either Section 1 or Section 2 of the form expires. This section may also be used if the employee is rehired within 3 years of the date of the initial execution of the form and to record a name change if Section 3 is otherwise completed.

Employers are required to maintain Forms I–9 for as long as an individual works for the employer and for the required retention period for the termination of an individual’s employment [either 3 years after the date of hire or 1 year after the date employment ended, whichever is later].

Key Revisions to Form I-9

• Adding data fields, including the employee’s foreign passport information (if applicable) and telephone and email addresses.

• Improving the form’s instructions.

• Revising the layout of the form, expanding the form from one to two pages.

Effective Date for the New Form I-9

Employers must use the new Form I–9 immediately; however, USCIS recognizes that some employers may need additional time in order to make necessary updates to their business
processes to allow for use of the new Form I–9.

For these reasons, USCIS is providing employers 60 days to transition to the new forms and update the company’s systems. Employers may continue to use previously valid Forms I-9 (Rev. 08/07/09Y and 02/02/09N) for 60 days until May 7, 2013. USCIS believes that the 60-day period will help alleviate the burden that immediate implementation of the newly revised Form I–9 would have imposed on employers. After 05/07/13, employers must only use the new Form I-9 (Rev. 03/08/13).

Frequently Asked Questions

Since the release of the new version of Form I-9, we have already received a number of inquiries regarding the new form from our clients acting as U.S. employers.

The most common question is whether an employer needs to complete new Form I-9 for existing employees.The answer is “No, unless re-verification of employment authorization is needed.”Please note that employers do not need to complete the new Form I–9 (Rev. 03/08/ 13) for current employees for whom there is already a properly completed Form I–9 on file, unless re-verification applies.

In the cases of re-verification or rehires the new version of the Form I-9 (Rev. 03/08/13)N must be used.

Please note that employers need to follow the existing rules for re-verification of employment authorization to make sure they do not engage in unnecessary verification that violates the anti-discrimination provision of the Immigration and Nationality Act. Under the existing rules, when an employee’s employment authorization expires, the employer must re-verify to ensure the employee is still authorized to work.

We will provide further updates once they become available. If you have questions regarding the use of Form I-9 or if you are unsure about your obligations as a U.S. employer, please do not hesitate to contact our office for a free initial consultation.