Revised Employment Eligibility Verification (I-9) Form Takes Effect April 3: Questions & Answers

by Tom Ahearn April 2, 2009

The U.S. Citizenship and Immigration Services (USCIS) implemented the revised Employment Eligibility Verification (I-9) Form – originally scheduled for February 2 – on April 3, 2009, resulting in changes to the Form I-9 compliance and management process. The following questions and answers provide an update on legislative regulations, discuss upcoming changes, and show how an electronic (paperless) I-9 solution simplifies and improves the efficiency of a company's employment eligibility program.

Why do employers have to fill out an Employment Eligibility Verification (I-9) Form?
Why did the government change the documents required for the Form I-9?
When should employers begin using the revised Form I-9?
What should employers do with the old Form I-9?
What are the penalties/sanctions for Form I-9 violations?
What type of Form I-9 violations can employers be guilty of?
What are the differences between the new Form I-9 and the old one?
What documents have been added to the revised Form I-9?
What documents have been removed from the revised Form I-9?
Why can’t employees present an expired document for the new Form I-9?
Can employers still accept documents that used to be on the Form I-9 but aren’t now?
Can employers re-verify employees by completing Section 3 of the old version of the Form I-9?
Are there any changes in the way the revised Form I-9 is completed?
Are there any changes to how much time employers have to complete the Form I-9 after a hire?
Are there any changes to where employers should file the completed Form I-9?
Are there any changes to how long employers have to keep the completed Form I-9?
Do employees still have to make the completed Form I-9 available for inspection?
If employees presented expired passports at the time they completed the Form I-9 before 4/3/09, do employers have to ask them to present new documents and update their forms?
If an employee presents unexpired documents at the time of hire but the documents expire during their employment, do employers need to ask the employee to provide them with a new copies of the unexpired documents?
On the 2/2/09 (revised) Form I-9, as well as the 6/5/07, Form I-9 it says, "Expires 6/30/09," at the top. Can employers still use the Form I-9 after these dates?
In Section 1 (Employee Information and Verification) of the new Form I-9, an employee can now be either a citizen or noncitizen national of the United States. Who is a noncitizen national?
What are some types of Form I-9 errors and can employers be punished for making them?
Where can employers obtain the revised Employment Eligibility Verification (I-9) I-9 and the updated "M-274, Handbook for Employers: Instructions for Completing the Form I-9"?
If employers have more questions about the Form I-9, where can they get them answered?
Is there a company that can help employers stay Form I-9 compliant?
How can employers find out more about the I-9Compliance.com service?

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Q: Why do employers have to fill out an Employment Eligibility Verification (I-9) Form?

A: The Immigration Reform and Control Act (IRCA) of 1986 requires employers to use the Form I-9 to verify the identity and work eligibility of all employees hired after November 6, 1986 and to properly complete the form every time they hire an employee to perform labor or services in return for wages.

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Q: Why did the government change the documents required for the Form I-9?

A: According to the Department of Homeland Security (DHS), the changes will significantly improve the security of the employment eligibility verification process. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents, which compromises the effectiveness and security of the I-9 process.

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Q: When should employers begin using the revised Form I-9?

A: Employers must use the revised Form I-9 for all new hires (and re-verifications) beginning April 3, 2009. After that, employers should NOT complete it for existing employees (except for re-verification).

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Q: What should employers do with the old Form I-9?

A: The old edition of the Form I-9 (dated 06/05/2007) will no longer be valid for use as of April 3, 2009. Employers that continue to use the 06/05/2007 edition may be subject to penalties or sanctions.

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Q: What are the penalties/sanctions for Form I-9 violations?

A: Employers can face penalties/sanctions such as fines, debarment from competing for government contracts, criminal prosecution, and seizure of company assets to gain compliance.

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Q: What type of Form I-9 violations can employers be guilty of?

A: Form I-9 violations can include knowingly employing illegal aliens and failure to properly maintain I-9 documents on employees.

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Q: What are the differences between the new Form I-9 and the old one?

A: The most noticeable difference is that all documents presented during the verification process must be unexpired. In addition to some technical updates, some documents have been added or removed.

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Q: What documents have been added to the revised Form I-9?

A: Two (2) documents have been added to List A on the List of Acceptable Documents:

  • A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp;
  • A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A.
NOTE: Although prior regulations refer to temporary I-551 "stamps," the U.S. State Department for several years has been affixing machine-readable immigrant visas (MRIVs) that contain a pre-printed temporary I-551 notation in the foreign passports of aliens immigrating to the United States. DHS therefore is updating the regulations to reflect this alternate temporary I-551 document with the pre-printed temporary I-551 notation on MRIVs.

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Q: What documents have been removed from the revised Form I-9?

A: Three (3) documents were removed from List A of the List of Acceptable Documents:

  • Form I-688, Temporary Resident Card;
  • Form I-688A, Employment Authorization Card;
  • Form I-688B, Employment Authorization Card.
NOTE: Forms I-688, I-688A and I-688B are older employment authorization documents. These are no longer issued and have now expired.

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Q: Why can’t employees present an expired document for the new Form I-9?

A: The DHS wants to ensure that documents presented for use in the Form I-9 process are valid and reliably establish both identity and employment authorization. Expired documents may not portray a valid status and are also prone to tampering and fraudulent use. This change takes into account the limits placed on these documents by their issuing authorities. If a document does not contain an expiration date, such as a Social Security card, it is considered unexpired.

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Q: Can employers still accept documents that used to be on the Form I-9 but aren’t now?

A: No. Beginning April 3, 2009, employers may accept only documents listed on the List of Acceptable Documents on the revised Form I-9. If employees must be re-verified, employers should ensure that they use the revised Form I-9 with its new List of Acceptable Documents.

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Q: Can employers re-verify employees by completing Section 3 of the old version of the Form I-9?

A: No. An employer may not re-verify the employee by completing Section 3 (Updating and Re-verification) of the previous version of the Form I-9.

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Q: Are there any changes in the way the revised Form I-9 is completed?

A: No. The revised form should be completed exactly the same way as the old one. Employers should be aware of changes to the acceptable documents in Section 2: Employer Review and Verification.

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Q: Are there any changes to how much time employers have to complete the Form I-9 after a hire?

A: No. U.S. law still requires that every employer complete the Form I-9 for each new employee within three (3) days of hire.

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Q: Are there any changes to where employers should file the completed Form I-9?

A: No. The Form I-9 still must be kept by the employer. Employers should NOT file the Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS.

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Q: Are there any changes to how long employers have to keep the completed Form I-9?

A: No. The Form I-9 still must be kept by the employer for either three (3) years after the date of hire or for one (1) year after employment is terminated, whichever is later.

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Q: Do employees still have to make the completed Form I-9 available for inspection?

A: Yes. The Form I-9 must be available for inspection by authorized U.S. Government officials, such as the Department of Homeland Security, the Department of Labor, and the Office of Special Counsel.

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Q: If employees presented expired passports at the time they completed the Form I-9 before 4/3/09, do employers have to ask them to present new documents and update their forms?

A: No. U.S. Passports do not have to be re-verified. Beginning April 3, 2009, all documents must be valid at the time the Form I-9 is completed. After that date, employers do not have to re-verify U.S. passports if they expire while the employee is working for the employer’s company.

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Q: If an employee presents unexpired documents at the time of hire but the documents expire during their employment, do employers need to ask the employee to provide them with a new copies of the unexpired documents?

A: As long as there is no break in employment, employers do not need to re-verify any List B document, Permanent Resident Card, or U.S. Passport. This rule will not change after April 3, 2009. Employers must re-verify an Employment Authorization Card, a visa, or any other document that establishes employment eligibility and has an expiration date.

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Q: At the top of the revised Form I-9 (which is actually dated 2/2/09) it reads: "Expires 6/30/09." Can employers still use the Form I-9 after these dates?

A: 6/30/09 is the date the new Form I-9 expires. Typically, the USCIS extends the date of validity of the form and the form should be updated prior to the expiration date. However, USCIS has not updated the expiration date in the past, leading to some confusion.

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Q: In Section 1 (Employee Information and Verification) of the new Form I-9, an employee can now be either a citizen or noncitizen national of the United States. Who is a noncitizen national?

A: Noncitizen nationals are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad. More information on noncitizen U.S. nationals can be found on the State Department web site linked under the "Related Links" section on the upper right-hand side of the page.

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Q: What are some types of Form I-9 errors and can employers be punished for making them?

A: There are two (2) types of Form I-9 errors: "Technical/Procedural" errors and "Substantive" errors:

  • "Technical/Procedural" errors can be corrected. An example of a technical/procedural error is forgetting to record a document title. If a copy of the supporting documentation has been kept, this is correctable without contacting the employee. The fines for these errors are discretionary;
  • A "Substantive" error cannot be corrected, and if audited, an employers’ company will likely face a fine for these errors if the statute of limitations has not run out. An example of a substantive error is not signing Section 2. If audited, employers will be fined for this.

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Q: Where can employers obtain the revised Employment Eligibility Verification (I-9) I-9 and the updated "M-274, Handbook for Employers: Instructions for Completing the Form I-9"?

A: The revised Employment Eligibility Verification (I-9) Form can be downloaded here (.pdf file). The updated "M-274, Handbook for Employers: Instructions for Completing Form I-9" is available on the USCIS website. Employers can also find a fully automated, seamlessly integrated, and completely paperless Form I-9 solution here.

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Q: If employers have more questions about the Form I-9, where can they get them answered?

A: Employers can find more questions and answers regarding the Form I-9 here.

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Q: Is there a company that can help employers stay Form I-9 compliant?

A: I-9Compliance.com – a member of the Pre-Employ.com Family of Companies – is designed to help employers meet complex and challenging employment eligibility requirements in a completely paperless environment. I-9Compliance.com’s low-cost, easy-to-use, and end-to-end reporting capabilities deliver a seamless and superior Form I-9 compliance solution. I-9Compliance.com delivers a web-based service that makes anyone a Form I-9 expert, standardizes error free processes across locations, and gives employers the visibility and reporting they need to manage the program with confidence.

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Q: How can employers find out more about the I-9Compliance.com service?

A: To find out more information about Pre-employ.com’s I-9Compliance.com service, please call 1-800-300-1821, email sales@i-9compliance.com, or visit www.i-9compliance.com. Employers may sign up for the I-9Compliance.com service here.

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