Say Hello to Our Little Form: The New I-9 Has Arrived!

Five months ago, we made an announcement.  That’s right, we were expecting a bouncing new black and white form!  We found out that the previous form I-9 had expired as of August 31, 2019, and therefore we were all in a bit of a holding pattern until the new form came out. 

Now, we know you are excited, and must have a million questions.  Overall, what can we expect from the new I-9?  Will it be just like the previous form, but with an updated expiration date?  Or, will it be entirely different?

Well, tune in, and we will debrief you about the purpose of the I-9, explain how to fill out the form, and highlight the changes that you will notice on the new form.  Certainly, you will have enough room in your heart to love this new I-9 just as you loved the first one.

I-9 Recap

As we mentioned way back in August, the purpose of the I-9, which emerged in 1986, is to verify employees’ identities.  Now, the new I-9 form is no different in that regards.  So, just as before, employers require employees to complete the form, and then the employer keeps the form on file.  Notably, the form must be completed “at the time of hire,” or within three business days of hire.  Furthermore, employers are required to retain the form for each employee for a minimum of three years after the hire date, or one year after the termination date.  Then, the government uses the form as part of the auditing process, when they need to look further into a business’s operations. 

Importantly, failing to comply with the requirements of the I-9 is considered to be a civil violation, punishable by penalties. 

What to Expect on the New I-9 Form

So, here is what you have been waiting for.  In reality, this new form shouldn’t rock your world, because it looks very similar to the previous form, and the changes aren’t earth-shattering.  In fact, the new form is largely updated to improve clarity for a handful of vague items that often caused confusion.

Here is how the USCIS updated the form, according to USCIS.gov:

  • Revised the Country of Issuance field in Section 1
  • Revised the Issuing Authority field in Section 2
  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarifications on acceptable documents for Form I-9
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

See?  You worried for no reason, didn’t you?

I-9 Quicksand

While it is mandatory for employers to complete and retain this form for each employee, they need to be careful of a couple of things.  First, they should never require more identification from the employee than what is listed on the form.  Second, they should be careful of refusing to accept documentation the employee provides, if it is something included in the list on the form.  The reason employers want to be careful of these two things is that requiring more identification or refusal to accept documentation could be considered discrimination.  Consequently, if that turned out to be the case, the employer could end up with fines or penalties, or worse, could land in an expensive discrimination lawsuit.

Now, the tricky part about requesting documentation for the I-9 is that some employees may provide false documentation.  This is particularly likely in situations where the employee is not a legal citizen of the United States.  So, employers may be fearful of penalties associated with knowingly hiring illegal or undocumented workers.  Besides penalties, employers may also worry about large workplace raids, which could put an end to their business.  Certainly, those are legitimate concerns.

Nevertheless, verifying the validity of documentation can be tricky.  So, while the government doesn’t actually expect employers to be experts in falsified documents, they do expect that employers will implement an I-9 compliance strategy to help reduce the risk of hiring undocumented workers.

I-9 Use-By Date

Now, the most important information you need to know is the “use by” date.  So, when should you have your new I-9 forms printed and ready for use?  Well, first of all, while the form was published and available for use on January 1, 2020, the government doesn’t actually expect that you will have all your ducks in a row immediately at the start of the new year.  Thankfully, they are extending a little grace period.  However, you do need to have the new form ready to go and be using them by May 1, 2020.

¡Precaución!

So, here is one more word of caution.  If you employ Spanish speakers, and you visit the USCIS website, you might be tempted to complete the Spanish version of the I-9 form, because you will see the form there for the first time.  However, unless you are an employer located in Puerto Rico, this form is not for you.  Alternatively, if you are struggling to complete the form with a Spanish-speaking employee, you can certainly use the Instructions for Form I-9 in Spanish.  While you will complete the English form, the Spanish instructions could prove useful.

Loving Your New I-9 Form

So, it has undoubtedly been a long time coming since we first announced the arrival of the new I-9 form.  Nevertheless, it is here, and it is here to stay.  So, be mindful of taking proper care that you complete the new I-9 form for each employee.  Also, be sure to keep the form for the appropriate length of time after hire.  Finally, make certain to be using the new form by May 1, 2020, so that you can be confident that you have shredded all the old forms, and have implemented the most current form.

Now, just take a deep breath, and do your thing.  You’ve got this!  When in doubt, don’t be afraid to ask for guidance.  After all, it takes a village.

Image of a group of Lego people with the words "It Takes A Village," indicating that navigating the new I-9 might require additional counsel.
Image by Aaron Davis | CC by

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This is not meant to provide legal counsel or advice. Every situation is different. Please contact an HR professional or employment attorney before taking any action.

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