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Tips for Use of New I-9 Form

Employers must begin using the new Form I-9 on May 7. Despite the issuance of conflicting information by USCIS regarding the effective date of the new I-9, USCIS confirmed that the effective date is May 7 and that it would not grant a grace period until May 8. ICE also confirmed that it would not grant employers a grace period.
Where old I-9 forms are used after May 7,  employers must correct those records. ICE confirmed that use of an outdated form is a technical violation that the employer can correct by either executing a new I-9 using the current form or by attaching an acknowledgement and explanation of the reason for the error.
Employers must understand new Section 1 terminology and fields relating to the I-94 number. USCIS confirmed that there would be no additional changes to the form or instructions related to CBP’s new electronic I-94 process. Therefore, employers must be ready to guide nonimmigrant employees who were admitted by CBP with an electronic I-94 record (and who have not been issued an A number or USCIS number) to properly record information about their I-94 record and foreign passport. Employers must also be familiar with the new documentation that employees will present after printing their electronic I-94 records from the CBP website.

Employers must provide new hires with the full, expanded I-9 instructions at the time they complete Section 1 of the I-9. USCIS confirmed that employees must receive the full set of instructions, for both the employee and employer portions, when completing the I-9. USCIS confirmed that the employer may not restate or reformat the I-9 instructions, but may laminate the official I-9 instructions for distribution to new employees.

Employers must be familiar with rules about completing optional fields and fields with no responses. There are two new optional fields in Section 1, the employee’s telephone number and e-mail address. Although the form does not state this, the instructions confirm that these fields are optional. USCIS confirmed that there are new rules in the I-9 instructions for fields where, if no information is to be completed, “N/A” either must or may be noted. The best practice is to ensure that “N/A” is used in all fields where there is no applicable information in both Sections 1 and 2. Note that if the employee has no other names, he or she must record N/A in the corresponding field.

Employers must use the new I-9 form for all reverifications. Where the employee at hire presented documents that are expiring and need to be reverified, the employer may not use Section 3 of an outdated form to record the reverification of the updated documents. Employers must use Section 3 of a valid I-9 form to record all reverifications. However, for a returning employee who is eligible for rehire on the original documents, the employer may complete Section 3 of the existing I-9, even if it is an outdated version, as long as the employee is returning within 3 years of the original hire and the I-9 documentation continues to be valid.

Employers must establish a policy on employees with new identities. The newly updated M-274 Handbook for Employers states that employers whose employees come forward with new identities “should” complete a new I-9 and, if enrolled in E-Verify, submit a query through the E-Verify system. USCIS clarified that this is a suggested best practice but is not a requirement. Therefore, for employees who present documentation of a new identity, the employer should establish a policy to either (1) complete a new I-9 and if applicable, complete an E-Verify query; or (2) update the existing I-9 form with the new identity information. Either way, employers should apply the policy consistently.

Employers must determine the timeframe for the 3-day rule for Section 2. USCIS confirmed that the 3-day rule for completing Section 2 is based on the employer’s operations schedule. If the employer operates a business that is closed on the weekend, the 3 business days for the employer’s requirement to complete Section 2 does not include weekends. However, if the employer’s business runs through weekends or holidays, such as a hospital or production plant, the employer must complete Section 2 within 3 business days including the weekends and holidays. This interpretation applies even if the business does not have human resources or management staff available on such weekends or holidays.

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