USCIS Demands Employers Use New I-9 Form as of April 3, 2009

By – Tina M. Maiolo, Esq

Effective April 3, 2009, USCIS’ new I-9 Form must be used by all employers.  A PDF version of the form can be obtained from the U.S. Citizenship and Immigration Services (USCIS) Website at www.uscis.gov.    Employers must complete this form for every new employee hired after November 6, 1986.  Employers may complete a new, or may re-verify or update the original form by completing Section 3 of an original Form, for re-hires after November 6, 1986.

Employers should ensure that each employee fully complete Section 1 of Form I-9 at the time of hire – defined as when the employee starts work.    Then, the employer should review the employee’s documentation proving identification and authorization to work in the United States before completing Section 2 of the Form.  The list of acceptable documents the employer may legally review appears in Part Eight and on the last page of Form I-9.  The employee can choose which documents he or she wants to present from the list.  The employer must complete Section 2 within 3 business days of the first day of work.

Employers do NOT need to complete the I-9 for individuals who are:

  1. Hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times;
  2. Employed for causal domestic work in a private home on a sporadic, irregular or intermittent basis;
  3. Independent contractors;
  4. Providing labor to you who are employed by a contractor providing contract services (e.g. a temp agency); or
  5. Not physically working on U.S. soil.

Employers should keep in mind that even though they do not have to complete the Form I-9 for independent contractors, they cannot contract for the labor of an alien if they know the alien is not authorized to work in the US.

When an employee’s employment authorization expires, employers must re-verify his or her employment authorization.  This may be done by using Section 3 of Form I-9, or, if Section 3 has already been completed, use a new form I-9.  If a new form is used, the employer should write the employee’s name in Section 1, complete Section 3, and retain the new form with the original.  The employee must present a document that shows either an extension of his or her initial authorization or new employment authorization.  If the employee cannot provide proof of current work authorization (any document from List A or C), the employer cannot continue to employ that individual.

In completing this process, employers must be mindful not to commit unlawful discrimination.  The anti-discrimination of the Immigration and Nationality Act, as amended, prohibits discrimination on the grounds of:

  1. Citizenship or immigration status;
  2. National origin
  3. Unfair documentary practices during the Form I-9 process; and
  4. Retaliation

Title VII of the Civil Rights Act of 1963 Title VII), as amended, also prohibits national origin discrimination, among other types of behavior.     The easiest way to avoid discrimination claims is to treat employees equally when recruiting and hiring, as well as when verifying employment authorization and identify on Form I-9.  More specifically, however, employers should also avoid:

  1. Setting different employment eligibility verification standards or require different documents by employees because of their national origin and citizenship status.
  2. Requesting employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign” or is not a U.S. citizen.
  3. Refusing to accept a document, or refusing to hire an individual, because a document has a future expiration date.
  4. Requesting an employee present a new unexpired Employment Authorization Document (EAD) during re-verification if he or she presented one during initial verification.  Instead, for re-verification, each employee must be free to choose any document either from List A or List C.
  5. Limit jobs to U.S. citizens unless citizenship is required for the specific position by law, regulation, executive order or federal, state or local government contract.    Legally, the employer can prefer a U.S. citizen or national over an equally qualified alien to fill a specific position, but you may not adopt a blanket policy of always preferring citizens over noncitizens.

For more information regarding the Form I-9 process or for information relating to prevention of discrimination during the Form I-9 process or during employment generally, please contact Tina M. Maiolo, Esq. at 202-310-5585.