The New Form I-9What Employers Should Expect and Prepare For

by: Bonnie Hungerford, JD, MA HRIR

Why Worry?

“It’s just a simple form.”

“We didn’t hire any illegals, so we are fine.”

“We’ll never get audited.”

Why Worry?

In 2011: 2,496 I-9 audits were conducted Criminally arrested 221

employers Issued 385 Final Orders for $10.4+ million in fines

Why Worry?Because a seemingly minor mistake can be extremely costly…

Why Worry?

I have yet to see a perfect audit!

Current Status of the Form I-9 Current version recently expired (8/31/2012)

What is an Employer to do? Continue to use current form (even though

expired) Continue checking the USCIS website for the

updated form

New Form in the Works Back in May, during the 60-day commenting

period between April and May regarding proposed changes to Form I-9, USCIS received over 6,200 comments regarding its proposed changes to the form.

Based on those comments, USCIS has made additional substantive changes.

Second comment period ended Sept. 21st.

Still in draft form

Overview of the Proposed Changes The 1-page form is now 2 pages Total packet is now 9 pages (compared to 5

pages) Slight changes/clarification to List of

Acceptable Documents Design is very different Additional information requested Wording changes throughout the form

Section 1: Old

Section 1: New Now, all of Section 1 takes up one full page.

Section 1: New Attestation: moved to the middle of the first

page

Section 1: New Preparer/Translator section now at the bottom

of the first page

Section 2: Old

Section 2: New Now on second page

Section 2: New

Section 3: Old

Section 3: New

List of Acceptable Documents: Old

List of Acceptable Documents: New

Changes in the Instructions Section 1

Should never be completed before job offer acceptance

PO Boxes cannot be used Only border commuters from Canada and

Mexico can use an international address. Email address and phone number are optional.

Changes in the Instructions Section 2

If employer participates in E-Verify, the List B document must include a photograph

Must physically examine each original document

The examiner of the documents and the employee must both be physically present

Clear instructions on acceptance of receipts If an employer keeps photocopies of documents,

it must present the photocopies during an audit.

Best Practices: What Should HR Professionals Do? Keep eye out for new I-9 Carefully review the proposed Form If using a third party, contact them to ensure

they are fully aware of proposed changes Once new form is published, conduct

extensive I-9 training for all employees who complete the I-9 for your company

Review and update all I-9 policies to ensure compliance

Internal Audits of Forms I-9

Getting Started Review I-9 Handbook for Employers and all

other guidance Compile list of all current employees and their

dates of hire Compile list of all former employees going

back 3 years, including the date of hire and date of termination

Gather all I-9s

Internal Audit Determine which I-9s are past their retention

deadline and shred Review each I-9 to determine errors Determine which is the best way to correct

the errors on each I-9 (either on the I-9 or creating a new I-9) Depends on the error

Corrections Communication to employees Set timeframes for corrections Make copies of I-9s that need corrections Make corrections on the copy, in different

colored ink Initial and date all corrections Draft internal audit memo to binder If you don’t have it already, prepare retention

chart for each I-9. Conduct training for I-9 managers

Common Pitfalls Expired form No date on employee signature Failure to complete section 2 Incomplete document names or missing

information Too many documents No date of hire Employer pre-signing form Backdating White-out

Common Pitfalls Failure to accurately calculate the retention

deadline The later of:

3 yrs from date of hire; OR 1 yr from date of termination.

DOH DOT 3 yr. DOH

1 yr. DOT

Retention

02/01/2007

06/01/2011

02/01/2010

06/01/2012

06/01/2012

05/01/2010

06/01/2011

05/01/2013

06/01/2012

05/01/2013

Best Practices: Establishing a Culture of Compliance

Obtain buy-in of executives through a business impact analysis

Conduct a thorough investigation of current state of I-9s and polices

Work with attorney or expert on remediation efforts

Establish a regular training program Conduct annual I-9 audits!!! Keep abreast of ICE guidance

Form I-9 ResourcesM-274 Handbook for Employers

I-9 Central: www.uscis.gov

Thank You!Questions?