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Out with the Old (I-9 Employment Eligibility Verification Form) and in with the New

Employers should be aware of recent changes to the I-9 Employment Eligibility Verification form, which all employers must use. Since November 1986, when Congress passed the Immigration Reform and Control Act (the “IRCA”), employers have been required to verify the identity and employment eligibility of prospective employees prior to hiring. The IRCA prohibits employers from hiring people, including U.S. citizens, for employment within the United States without first verifying their identity and employment authorization on the form I-9. An employer may not knowingly hire an unauthorized alien or permit the employment of an unauthorized alien to continue once the employer learns of such status. The employer must also avoid participating in “document fraud” in attempting to satisfy its requirements under the IRCA.

On July 17, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) issued a new I-9 Employment Eligibility Verification form. All employers are now required to use the new version of the I-9 for any employee hired on or after September 18, 2017. The current form now includes the following:

  • A section for “other last names used.”
  • Enhancements to the form online which make completion of the form simpler, such as the addition of prompts to ensure information is entered correctly; a dedicated area solely for additional information; and the ability to enter and identify multiple preparers or translators on a supplemental page.
  • Revisions to the list of acceptable documents proving identify and employment authorization to include Form “FS-240, Consular Report of Birth Abroad” on List C.

Pursuant to the IRCA, the employer must verify the identity and employment authorization of each person hired and complete and retain the form I-9 for each employee required to complete such form. While hiring an employee, employers may not discriminate based on national origin, citizenship or immigration status; request more or different documents than those are required on the I-9 to verify employment eligibility from individuals applying for employment; or hire, recruit or refer for a fee unauthorized aliens that are known to be unauthorized to work in the United States.

The penalties for failure by an employer to comply with its responsibilities under the IRCA are substantial and apply to the new I-9. Employers who fail to comply with the I-9 requirements are subject to civil fines and/or criminal penalties (where there is a pattern or practice of violation), debarment from Government contracts, as well as being required by Court order to either remit “back pay” to or actually hire any individual discriminated against.

Employers should review employee files to confirm that their I-9s are all complete and conform with the law in effect at the time of hiring. If not, the I-9s can be amended in certain instances.

For questions about your obligations as an employer, contact one of our attorneys to discuss your business.


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