The Department of Homeland Security’s U.S. Citizenship and Immigration Services division (“USCIS”) recently issued an updated I-9 form, which employers will be required to use effective January 22, 2017.
Before explaining what employers need to know about using the new form, we provide you with the following “primer” on why the I-9 form is required. In 1986, Congress enacted the Immigration Reform and Control Act in an attempt to legalize about three million undocumented immigrants while at the same time attempting to deter future undocumented immigrants. At that time, a form called “Form I-9” was created as a way to require newly hired workers to demonstrate they were indeed eligible to work in the U.S.
Only those immigrants with lawful permanent residency are allowed to work and live lawfully and permanently in the United States. Lawful permanent residents (LPRs) are eligible to apply for nearly all jobs (i.e., jobs not legitimately restricted to U.S. citizens) and can remain in the country even if they are unemployed.
If an immigrant is not a U.S. citizen or a lawful permanent resident, they may still be able to work in the U.S. but they must have a work permit, or an Employment Authorization Document (“EAD”) or temporary work visa to do so.
So what are the responsibilities employers have in these matters?
Section 274A(b) of the Immigration and Nationality Act requires that employers verify that all of their employees are legally authorized to work in the United States.
To do so, employers must prepare the Employment Eligibility Verification Form (known as the Form I-9) within three days of a hire.
The I-9 requires newly hired employees to provide certain documents proving their identity and that demonstrate that they are legally permitted to work in the United States.
It’s important to know that employers who fail to comply with I-9 completion and retention rules can be penalized. For instance, if an employer knowingly hires unauthorized workers, that employer can face fines ranging from $375 to $16,000 per employee, depending on the nature of the violation.
Simple technical violations of I-9 requirements generally are not penalized immediately (employers are notified of violations and given 10 business days to correct the errors). Technical violations may include:
- Failure of the employee to date the form properly including failure to provide the date that employment begins
- Failure to date the employer section of the form properly
- Failure to provide the date of rehiring an employee in the section of the form used for rehiring
- Failure to indicate that an employee is under the age of 18
An employer who can show they made a good faith effort to comply with the requirements may have a reasonable defense to any penalty that the government attempts to impose. Once such a defense is offered, it’s up to the government to then show that the employer did not act in good faith.
Important note: The Form I-9 has not been replaced by E-Verify, an online method of quickly determining eligibility to work in the United States. Completing the Form I-9 for each newly hired employee is still required, even if an employer voluntarily opts to use E-Verify.
So, what changes are there on the newly revised I-9 form itself of which employers need to be aware?
Most significantly, the form can now be completed electronically and printed for signature. In the electronic version, the form contains “pop-up” instructions and some auto-fill features that will help users complete the form correctly. A link to the full instructions and a “start over” button are also featured on the electronic version, which also may be printed for manual completion. The electronic version also contains some other useful features, such as matching the documents that may be entered with the employee’s representation of status in Section 1. Employers should also be aware that there is a new box in Section 2 that employers are required to fill-in that matches the status box checked by the employee in Section 1. The form also contains a supplement to allow for multiple preparer or translator signatures.
You can access the new I-9 form through the following link: https://www.uscis.gov/sites/default/files/files/form/i-9.pdf.
Finally, USCIS has also amended certain regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017. Among other things, DHS is amending its regulations to:
- Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
- Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
- Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
- Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
If you’re an employer and have questions about current immigration laws as they pertain to employment, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys have over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.
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