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Employers Required to Use New Form I-9

As of January 22, 2017, employers are required to use the new Form I-9 issued by the U.S. Citizenship and Immigration Services (USCIS). A link to the new form can be found here. Employers who fail to use the updated form can be subject to fines and penalties, which nearly doubled in 2016 (the minimum fine is $216 for each noncompliant Form I-9 and can escalate to $2,156 per form). The USCIS also updated the accompanying instructions, which can be found here.

The Form I-9 has been dubbed a “smart I-9” because it is a fillable PDF with various interactive features. The form has different drop down menus and question marks that, when the cursor hovers over them, provide guidance.

Notwithstanding the new smart I-9 features, the Form still can be completed in good old fashioned paper format. In fact, employers should be aware that once the form is completed (whether electronically, in paper form, or some combination of both), it must be printed and signed in paper format unless employers use an electronic I-9 vendor.

While the acceptable list of verification documents remain the same, some new requirements have been added. For example, users are required to enter N/A in any fields that previously could have been left blank. If no preparer or translator assists in the completion of the Form, employees now must affirmatively check a box indicating that no preparer or translator was used. Going forward, all required reverifications must use the new Form I-9 and be affixed to the original Form I-9.

Given that one of the expected areas of focus for the new Trump administration will be immigration, employers would be well-advised to consider conducting an I-9 self-audit to assess and remediate any violations. The potential uptick in worksite enforcement (which already has been on the rise over the last several years) coupled with the significant increase in potential fine amounts (employers found to have knowingly hired an unauthorized alien for employment in the United States can be fined from $530 to $21,563 for each unauthorized alien) means that I-9 compliance should be on employer radar screens.

For information on the new Form I-9 or on conducting an I-9 compliance audit, please contact Andrea M. Kirshenbaum at 215-587-1126, or akirshenbaum@postschell.com, or any member of Post & Schell’s Employment & Employee Relations Practice Group.

About the Author

Andrea M. Kirshenbaum is the Chair of the Firm's Employment and Labor Practice Group and its related Practice Groups, Employment and Collective Class Actions, Emplyment & Employee Relations, Labor, Trade Secret & Non Compete Law, and Wage and Hour. She is also a member of the Firm's Appellate Department. She defends employers nationally in federal and state court litigation involving all major employment statutes, represents them in related government investigations, and counsels them proactively on compliance with these statutes.

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