Thursday, March 28, 2013

The 2013 I-9 and Handbook for Employers

 by Charles M. Miller

U.S. employers or recruiters for a fee have the duty to ensure that every newly-hired employee completes and signs section 1 of the Form I-9 on the first day of hire. The employer’s verification responsibilities include an examination of the employee’s documentation of identity and employment eligibility, and the necessary completion of the employer's certification portion of the Form I-9 form within three days of hire. The employee hired for a period of less than three days must present the required documents on the first day of employment.

On March 8, 2013, the USCIS released a two-page Form I-9 which is the seventh version of the form since it was introduced in 1987. This revision of the I-9 is a fill-able, Adobe version of the form. Its effective date is found on the bottom, left-hand corner of the first page, “Form I-9 03/08/13)N”. Employers were allowed a 60-day grace period to begin using the 2013 version of the form for their verification responsibilities, until May 7, 2013, and will not be penalized for use of the two previous 2009 versions during that period of time.

The USCIS doubled the form’s size from one page, which was a feature common to the various versions of the I-9 since it was introduced by the legacy INS. The longer form contains some improvements, with its two pages clearly divided into the employee section 1 on page 1 and the employer review section 2 and the reverification and rehires section 3 on page 2.  There is now space for a third document in the section 2 , List A review and verification section.

Employers are allowed to create back-to-back photocopies of the two-sided form, creating the choice of by making either double-sided or single sided copies of the I-9. [1]

Employers are advised to also carefully read and utilize the six pages of instructions that accompanies the two-page I-9 and the one page list of acceptable documents.

The March 8, 2013 revision of the I-9 also includes the following structural changes:

  • Page 1 Section 1, Employee Information now has two new optional fields, employee email and telephone number in addition to the original optional field, the Social Security number. The Social Security number is optional information for Form I-9 and voluntary for all employees unless the employer participates in the E-Verify Program, which requires an employee’s Social Security number to check employment eligibility verification with the Social Security Administration’s database. [2]

  • Page 1 Section 1 name block where “maiden name” has been replaced by an “Other Names Used (if any)” block .  Employees are instructed as to the following in the completion of Section 1:

 “Enter your full legal name and other names that you have used in the past or present (e.g., maiden name) if any.

        If you have two last names (family names), include both. If you hyphenate your last name, include the hyphen (-) between the names.
        If you have two first names (given names), include both. If you hyphenate your first name. include the hyphen (-) between the names.
        Include your middle initial,  if applicable.
        Enter N/A if you have no middle initial or have not used other names.[3]

·       The 2013 Handbook for Employers also provides new detailed instructions to employees as to the acceptable information in the Section 1 address block:

“Enter your home Address, Apt. Number, City or Town, State and Zip Code. Enter N/A if you have no Apt. Number. You may not enter a P.O. Box in this field. If you have no street address, enter a description of the location of your residence, such as "9 miles south ofI-81, to the left of the water tower." [4]

There are new structural changes to Page 2 Section 2 Employer Review, including:

·       The employee name was moved immediately below the section 2 instruction at the top.

·       There is a new third document block under List A to record information from, for example,   page 3 of Form I-20 to record information from, for an F-1 student who is eligible for employment under curricular practical training or off-campus employment[5], or to record information from the J-1 exchange visitor’s DS-2019.

·       The four informational fields, Document Title, Issuing Authority, Document Number and Expiration Date have been integrated into Lists B and C.

The USCIS now recommends that employers use Section 3 to record name changes that are not linked to document reverification, and that they maintain copies of legal name change document(s) reviewed.

The USCIS has also provided a Spanish lanquge version of the revised Form I-9, entitled “Formulario I-9”.  While the USCIS has limited the use of  “Formulario I-9” for verification is limited to employers and employees in Puerto Rico.  The Spanish version may be used for reference only outside of that territory.

The 2013 Handbook for Employers

The USICS released a revised version of the M-274 Handbook for Employers, Guidance for Completing Form I-9 (Employment Eligibility Verification Form),  which reflects the two-page design of the I-9 form. The Handbook for Employers is now contains photos of common List A, B and C documents, along with FAQ pages for completion, maintenance and retention of the I-9s.

The publication of each major revision of the Handbook has been accompanied by important policy changes and the March 8, 2013 edition was no exception.  The Handbook adopted the E-Verify Thursday rule for all employers. The Thursday rule  reinterpreted the three-day rule for creating a timely E-Verify case in that program’s system. This policy now gives all employers three business days after the new employee starts work for pay to complete the Form I-9 Section 2 employer verification and attestation as follows:

Ensure that the employee completes Section 1 of Form I-9 at the time of hire. "Hire" means when employment in exchange for wages or other remuneration begins. The time of hire is noted on the form as the first day of employment. Employees may complete Section 1 of Form I-9 before me time of hire, but no earlier than acceptance of the job offer. Review the employee's document(s) and fully complete Section 2 of Form I-9 within three business days of the hire. For example, if the employee begins employment on Monday, you must complete Section 2 by Thursday. [6]

That three-day period of time also represents the period of time for E-Verify member employers to initiate employer case creation in the E-Verify system.[7] The USCIS three-day Thursday rule departs from the OCAHO interpretation of the regulation [8] in the Curran Engineering case
which required that employers verify the employee documents and fully complete Section 2 of Form I-9 within 3 business days of the first day of work. [9]

The 2013 Handbook, for the first time, has provided employers with I-9 guidance in cases where the employee has used another name in situations other than a legal name change, as follows:

You may encounter situations other than a legal change of name where an employee informs you or you have reason to believe that his or her identity is different from that previously used to complete the Form I-9. For example, an employee may have been working under a false identity, has subsequently obtained a work authorized immigration status in his or her true identity, and wishes to regularize his or her employment records. In that circumstance you should complete a new Form I-9. Write the original hire date in Section 2, and attach the new Form I-9 to the previously completed Form 1-9 and include a written explanation.

In cases where an employee has worked for you using a false identity but is currently work authorized, the I-9 rules do not require termination of employment. However, there may be other laws, contractual obligations, or company policies that you should consider prior to taking action.[10]

For E-Verify employers the Handbook provides the following advice in the above-described situation:

 If you complete a new Form I-9 in a new identity situation as described above, e.g., where a name change to Form I-9 information is not a legal name change, you should verify the new Form I-9 information through E-Verify. If you do not complete a new Form I-9, you should not begin a new E-Verify case.[11]

A new I-9 accompanied by true documents, maintenance of the original hire date and an explanation,  is an important new method to regularize both the identity and employment authorization of these employees.   

[1] Handbook for Employers at 27 (2013).
[2] Handbook for Employers at 5 (2013).
[3] Handbook for Employers at 4 (2013).
[4] Handbook for Employers at 5 (2013).
[5] Handbook for Employers at 17-18 (2013).
 [6] Handbook for Employers at 3 (2013).
[7] USCIS, “What’s the Hire Date for E-Verify?” available at .
[8] 8 C.F.R. § 274a.2(b)(1)(ii) provides that Form I-9 Section 2 must be complete “within three business days of the hire.” Under the definitional regulation 8 C.F.R. § 274a.1(c), “hire” means either the “actual commencement of employment of an employee for wages or other remuneration.”
[9] Curran Engineering, 7 OCAHO 975, 897–898 (Oct. 31, 1997).
 [10] Handbook for Employers at 4 (2013)
[11] Id.