Form I-9, used to verify and maintain records of employees’ lawful eligibility to work in the United States, has justifiably been called America’s “most complicated one-page form.” Even though USCIS (U.S. Citizenship and Immigration Services, the agency responsible for designing the I-9) has recently released a new nearly 70-page handbook to assist employers in filling out the form, many questions about the proper way to complete it remain unanswered by the agency.
The new USCIS handbook does answer some questions that had vexed I-9 preparers over the years. It finally addresses whether the three-day period in which an I-9 must be prepared after hiring an employee includes the date of hire (it does not) and clarifies that Form I-9 should only be prepared after the employee has accepted an offer of employment. It also adds information on how to handle employee name changes and discrepancies, leave periods, layoffs, and corporate mergers. The USCIS handbook also now contains more detailed information on the employment eligibility of foreign nationals in various immigration statuses, as well as detailed electronic I-9 system requirements and information on how the I-9 interacts with the E-Verify eligibility verification system.
However, many questions about Form I-9 remain unanswered. Even though the new USCIS handbook contains photos of many documents that can be provided by employees in the I-9 compliance process, it still does not contain a comprehensive photo guide. Also, while the new handbook provides welcome new information on how to record changes to an I-9 form, it still does not cover all specific cases that might come up in revising I-9s already on file.
If all of this sounds complicated, know that you will have only three days to produce each and every one of your company’s I-9s in the event of an audit by ICE (Immigration and Customs Enforcement, the agency responsible for reviewing employers’ I-9s). ICE is empowered to levy multi-million dollar fines on employers for I-9 non-compliance, and has done so many times in the past. Therefore, the best I-9 compliance strategy continues to be to take a proactive approach. Employers may want to hire services such as I-9compliance.com to avoid ICE audits and ensure that they are as well prepared as possible to respond in the event of an ICE enforcement action.