I Have Management Questions For A Management Lawyer.

Please note: Sending us an email will not make you a client of our Firm. Please do not send us confidential information or sensitive materials through this form.


New I-9 Form Released – Are You Ready?

Every time you hire a new employee, you must complete an “I-9 Form” to verify the employee’s identity and eligibility to work in the United States.  An updated version of the form was issued on March 8, 2013, by U.S. Citizenship and Immigration Services.  Although employers must start using the new form immediately, there is a grace period until May 7, 2013, for employers who continue using the old form.  The new form is available here.

The form makes only minor revisions.  There are optional fields for an employee’s telephone number and email address.  There are some clarifications to instructions, including a clarification that Social Security cards with restrictions are not valid to establish work eligibility (but they are valid to establish identity).

While the revisions are minor, I-9 non-compliance can be complicated and expensive for employers.  Abercrombie & Fitch was fined over $1 million for violations, even though there was no proof it knowingly hired workers who lacked authorization to work in the United States.  Some common pitfalls are:

  • Failing to complete the I-9 on time.  The employee must complete Section 1 after accepting the job offer, but no later than the first day of work.  The employer must complete Section 2 no later than the third business day after the employee starts work.
  • Failing to retain the I-9 for three years from hire or one year from termination, whichever is later.
  • Failing to re-verify I-9 information.  Reverification is required if the employee changes his or her name, if the employee is rehired within 3 years of completing an I-9 (after 3 years, a new I-9 Form must be completed), or if the employee’s work authorization or document establishing work authorization expires.  You do not need to reverify if an identity document, such as a driver’s license, expires.
  • Using the Spanish language version.  A translated I-9 Form is approved for use in Puerto Rico only.  However, you may show employees the Spanish translation in order to assist in completing the English language form.
  • Ignoring red flags.  If a document looks fake or has the wrong name on it, you should not accept it.
  • Only completing the I-9 Form for immigrants or suspected immigrants.  The form must be completed for all employees.
  • Not completing the I-9 Form for employees the employer mistakenly believes are independent contractors.
  • Asking the employee to provide more documents than required or asking for specific documents.  Employees may provide any documents that comply with the requirements stated on the I-9 Form.

Scrutiny is up.  Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits more than twelve-fold since 2007.  Employer fines have grown faster, increasing almost thirteen-fold since 2009.  Employers should take this opportunity to brush up on their knowledge of I-9 compliance and conduct a self-audit to uncover and correct any problems.

Brody and Associates regularly advises management on complying with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.