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New form becomes mandatory Sept. 18
The newest version of the Form I-9 was published by U.S. Citizenship and Immigration Services (USCIS) July 17.
The form, used by HR to verify employment eligibility, will be mandatory beginning Sept. 18.
"Employers will be able to use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17," the agency said. "On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N."
Current storage and retention rules have not changed.
[SHRM members-only toolkit: Complying with Form I-9 Requirements]
"The new version brings very subtle changes to the form's instructions and a list of acceptable documents, which were created with the theoretical goal of making the form easier to navigate," said Davis Bae, managing partner of the Seattle office of law firm Fisher Phillips. "Besides changing the wording on the form in almost imperceptible ways, the new version renumbers all List C documents except the Social Security card and streamlines the certification process for certain foreign nationals."
The revisions to the form relate to USCIS's List of Acceptable Documents and specifically update List C to reflect the most current version of the certification or report of birth issued by the U.S. State Department.
Employers completing the Form I-9 on a computer will be able to select the newly added Consular Report of Birth Abroad Form FS-240, which is issued to certain employees born overseas to a U.S. citizen parent. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for employment eligibility verification. "The FS-240 has actually been in use for a long time, and so this change should help some employers that were previously told it was not acceptable," said John Fay, vice president and general counsel at the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration compliance services.
All birth certificates issued by the State Department (Form FS-545, Form DS-1350 and Form FS-240) will be compiled into selection C#2 in List C.
The new form will also modify the form's instructions by removing "the end of" from the phrase "the first day of employment" in reference to completing Section 1. "While the agency did not specify the reason for this change, it was likely made to ensure consistency with the regulations which indicate that Section 1 must be completed 'at the time of hire,' without any reference to the time of day," Fay said. "Following this updated guidance, employers may want to revisit their own I-9 policies and procedures to ensure that Section 1 is completed no later than when the employee starts work for pay."
The last change is a revision of the name of the Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section.
"HR professionals implement critical workplace programs and policies every day, including maintaining a legal workforce," said Chatrane Birbal, senior advisor in government relations at the Society for Human Resource Management (SHRM). "While the USCIS revisions to Form I-9 are minor, SHRM applauds the modifications and looks forward to working with the agency and Congress to support additional improvements that will provide employers with modern tools and build upon E-Verify's success."
Switch Over to New Form Now
"Although you will be able to use this new version or continue using the previous Form I-9 through September 17, it makes sense to scrap the use of the November 2016 version and begin using the updated version right away," Bae said. "You should recycle all older versions you already have printed out, and instruct your hiring managers and human resources representatives to download [the new version] of the form for use with new hires from this point forward."
Although the changes to the Form I-9 are minimal, failure to comply by the Sept. 18 deadline can result in significant fines. Immigration and Customs Enforcement announced increases in fines for Form I-9 violations last year.
"Every change to the Form I-9, no matter how small or seemingly insignificant, can have an impact on an employer's ability to stay in compliance with the law," Fay said. "Sometimes, the biggest obstacle is just making your organization aware that a new version exists, particularly for those employers who are still completing the I-9 on paper."
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