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New I-9 Form Version Expected by November 22, 2016

The Office of Management and Budget (OMB) cleared the way for USCIS to issue its new version for the I-9 Employment Eligibility Verification Form. USCIS has announced that it will publish the new form version by November 22, 2016.

When will the new I-9 version become mandatory?
As with the prior I-9 version, there will be a 60-day transition period during which employers may use either the new version or the old one. Based on the USCIS announcement available as of the date of this article, the new form version will become mandatory beginning on January 21, 2017.

What to expect from the new I-9 version?
At first glance, the new I-9 form version does not look significantly different from the version currently in effect. However, the new version is expected to have “smart” digital features embedded in the form, including built-in drop-down menus, which can be accessed if the employer opts to fill out the form on a computer instead of a printed hard copy.

The new form version is also expected to have an embedded, auto-generating QR code, a 2D barcode that will store the information entered in form I-9. USCIS hopes that the new “smart” features and QR code technology will help streamline and speed up government audits.

Will any other I-9 procedures change?
No, the remaining I-9 procedures will remain the same. Employers will still be required to ensure new hires fill out Section 1 no later than the first day of employment, while the employer fills out Section 2 within three days. The employer will also continue to review new employees’ I-9 compliant documents and, where applicable, copy and retain those documents, regardless of whether they choose to fill out the new I-9 form digitally or manually.

Who must comply with I-9 procedures and why?
All employers must comply with the I-9 Employment Eligibility Verification process for their new hires, and the I-9 Re-Verification process for their existing employees whose U.S. employment authorization expires.

The I-9 process was first introduced as part of the Immigration Reform and Control Act (IRCA) of 1986. The purpose of IRCA was to dissuade U.S. employers from hiring undocumented individuals by imposing considerable fines against the employer and, for repeat or egregious violators, criminal liability against the employer’s officers or directors. The intended result of IRCA was to reduce illegal immigration by limiting undocumented individuals’ access to jobs in the U.S.

Which government agency performs I-9 audits?
The U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), investigates an employer’s hiring of undocumented workers or compliance with the technical requirements of the I-9 verification process. The U.S. Department of Justice investigates I-9 verification practices that constitute discrimination against qualified workers based on their citizenship status. Both agencies have increased their focus on workplace audits in recent years.

What are the penalties for non-compliance?
The penalties for not complying with I-9 procedures can be monetary fines or criminal prosecution, depending on the severity and frequency of the violation. Pursuant to the Bipartisan Budget Act of 2015, which mandates that all federal agencies adjust their penalties to account for inflation, the U.S. Department of Homeland Security and the U.S. Department of Justice have adopted a new penalty schedule beginning August 1, 2016.

The table below lists the most common types of I-9 violations and the penalties they may trigger, both under the old and the new penalty schedules. The new penalty schedule is to be applied to violations that occurred after November 2, 2015.

RVO

Given the penalties outlined above, the importance of properly and consistently completing Form I-9 (whether the new version or any of the prior versions) cannot be stressed enough. In addition to making it illegal to hire individuals lacking U.S. employment authorization, the law also created civil fines for employers who, even though they employ only individuals authorized to work in the U.S., may nevertheless be in violation of federal law for not complying with the procedural requirements of the I-9 employment verification process.

We will continue to monitor the introduction and implementation of the new I-9 form version and we will keep you updated as new information becomes available. In the meantime, please do not hesitate to contact us with any questions regarding the I-9 process or any other employment or immigration-related matters.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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