New Form I-9 Requirements for Employers Goes Into Effect May 1, 2020

The Federal government announced new I-9 Employment Verification forms will be required from businesses effective May 1, 2020. The newest version of the I-9 form has minor changes, some of which will only be visible to employers who complete the form online.

What is an I-9 form?

Form I-9, Employment Verification, was required by law after the enactment of the Immigration Reform and Control Act of 1986. It requires employers to verify the identity and employment eligibility of hires, and it also established criminal and civil sanctions for employment-related violations.

When it was passed, the IRCA legalized most illegal immigrant workers who arrived in the United States before 1982 and made it illegal for companies to hire non-verifiable workers following its passage.

Form I-9 is required for all employees in the U.S., and it verifies 2 specific areas:

• First, it verifies the employee’s identity, proving — with supporting documents — that they are who they say they are
• Second, it verifies the employee’s authorization to legally work in this country

The form requires employers to visually see employee identification and authorization forms, and attest the forms are legitimate. New employees must present their I-9 documentation and sign the form 3 three days of hire. If employees do not provide the necessary forms, the employer is required to sever the employment agreement immediately.

Some employers make copies of the documents provided to keep on file for legal reasons. While copies are not required by law, they may be helpful.

There are workers who have work authorization forms that expire; keeping a copy of the form can help remind employers to re-verify when/if the worker’s authorization has been updated.

Who needs an I-9 form?

All employees need to complete and sign an I-9 Form. It provides a signed attestation of identity and verifies the documents they provide for authorization are legitimate. Employers who use the E-Verify system are not exempt from using and keeping I-9 Forms in each employee’s personnel file — both should be completed.

When to verify and re-verify

The form requires employers to verify original documentation, which can include:

• Drivers’ licenses
• Social Security cards
• Passports for U.S. citizens

Employment authorization and identity documents are provided by permanent resident aliens and other foreign nationals.

In most cases, employers need to only verify identity and authorization at the initial hire of the employee. But there are exceptions. If an employee is rehired with a gap in service of 3 years or more, a new Form I-9 will need to be completed.

For documents that expire, such as work authorization forms, re-verification is required at or before the time the document becomes no longer valid. If the employee cannot provide reauthorization to work, the employer must sever the employment agreement until reauthorization is acquired.

Changes to the form for 2020

Updates to Form I-9 for 2020 include:

• Adding locations to the Country of Issuance fields (online only)
• Clarification of acceptable documents
• Additional information regarding who can act as an authorized representative on an employer’s behalf
• An updated website
• An updated privacy notice

Deadline to use the new I-9 form

Employers will need to comply with new form requirements set by U.S. Citizenship and Immigration Services (USCIS) beginning May 1, 2020. The new Form I-9 will soon be available on the Department of Homeland Security’s website. Until then, employers who hire after January 1 and before April 30, 2020, should use the latest version of the form which has an issue date of October 21, 2019.

After April 30, 2020, USCIS advises all older versions of the form will be obsolete. Failure to use the updated form could result in penalties to employers.

Who enforces I-9 compliance?

Many branches of the U.S. government have jurisdictional authority to examine I-9 documents in the workplace. The Department of Homeland Security, Immigrant and Employee Rights Section (IER), Immigration and Customs Enforcement (ICE), and the Department of Labor may all inspect I-9 Forms to assure compliance with the law. Employers should assure every employee’s personnel file has a completed and verified  I-9 form.

Penalties for non-compliance

Businesses must be vigilant in collecting and maintaining I-9 documentation. In addition to civil penalties for non-compliance with I-9 requirements, businesses may be barred from accepting government contracts.

For employers who show a “pattern or practice” of violations, criminal penalties may also be imposed. Civil penalties range from $230 to $2,292 per day per unverified employee.

In addition to fines and penalties, if an employer is found to be in violation of I-9 regulations, they may be referred to other agencies for investigations. These could include Wage & Hour Divisions, Homeland Security, ICE, as well as state and federal Departments of Labor.