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Are you Using the New I-9 Form and Retaining the Forms Long Enough to Pass an Audit?

Updated: Jul 23, 2020

By Sarah Everhart

Apple trees (Photo Credit Edwin Remsberg).

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At ALEI we posted previously about the importance of having I-9 forms for all farm employees. Briefly, the 1-9 form verifies the identity of workers and, if properly completed, is the basis of an employer’s defense to a claim of knowingly employing an unauthorized worker. The form is periodically updated, most recently on July 17, 2017. The new form replaces a version dated November 14, 2016. Employers are given a two-month grace period and must start using the new 1-9 form by September 18, 2017. In addition to the new form, the U.S. Citizens and Immigration Services (USCIS) Employer Handbook (M-274) has also been updated; employers should review it to ensure their procedures are up to date.

There are not many substantive changes in the new version of the form and the PDF form still contains all the “smart I-9” features of the previous version. The form instructions have changed slightly. USCIS has changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to Immigrant and Employee Rights Section. Additionally, the instructions regarding when the form must be completed have changed, removing “the end of” from the phrase “the first day of employment.”

The new I-9 form also includes changes in the list of acceptable documents verifying the employability of an applicant. USCIS has added to List C, the Department of State Form FS-420, Consular Report of Birth Abroad. This newly added form has resulted in the reorganizing and renumbering of other categories of acceptable documents.

Importantly, all employers must complete and have an I-9 form on file for each person currently on their payroll. Further, employers must retain I-9 forms for all terminated employees for three years past the hire date or the date of termination plus one year. Employers need to retain I-9s for current and past employees to be prepared for USCIS audits.

According to a recent article by Cynthia B. Rosenberg, Esq., in the August 15, 2017 edition of the Maryland State Bar Association newsletter, the best way for employers to prepare for a USCIS audit is to conduct internal I-9 audits and promptly recreate any missing I-9 forms, explaining why they are missing. According to Rosenberg, employers should “be vigilant; most violations are not for unauthorized employment but rather for sloppy record keeping.”

A good source of more information on I-9 issues is the questions and answers section of the USCIS website on I-9 compliance.

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