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Vedder Thinking | Articles Immigration Update: All U.S. Employers Required to Use New Employment Eligibility Verification Form I-9 as of May 7, 2013

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U.S. Citizenship and Immigration Services (USCIS) now requires all U.S. employers to use its revised Employment Eligibility Verification Form I-9 as of May 7, 2013. All employers are required to complete an Employment Eligibility Verification Form I-9 (Form I-9) for each new employee hired in the United States. The updated form (revision date 03/08/13) includes new information fields and has been expanded to two pages. USCIS says the new formatting will reduce errors and provide clearer instructions for both employees and employers. The List of Acceptable Documents has not changed.

A few things to note:

  • Employers should NOT require current employees to complete the new Form I-9 unless required by federal contract.
  • The new form will be used only for new employees or when re-verifying the work authorization of current employees.
  • New employees may complete the form after acceptance of the job offer, but no later than the first date of hire.
  • The new instructions confirm that an employer has three business days to complete the form; in the case of reverification (e.g., for expired Employment Authorization Documents, etc.), the employer must reverify the document(s) on or before the employee’s work authorization expires.

The new Form I-9 does NOT change any requirements relating to remote hires. USCIS’s position is that the employer representative who signs the attestation must be the same person who physically examines each original document to determine if it reasonably appears to be genuine and relates to the employee. An employer with remote hires may delegate the verification to a person who serves as an agent of the employer, but that agent must examine the documents and complete Section 2 or Section 3 of the Form I-9. The employer remains liable for the actions of the agent.

A Spanish-language version of the new form is also available on the USCIS website for use in Puerto Rico only. Spanish-speaking employers and employees in the 50 states, Washington, DC, and other U.S. territories may refer to the Spanish-language version but must complete the English-language version of the Form.

Employers may be fined for all substantive and uncorrected technical violations of Form I-9. Penalties for failing to use the new Form I-9 range from $110 to $1,100 per violation.

Visitors to the United States May Need to Print Form I-94 Arrival/Departure Records

U.S. Customs & Border Protection (CBP) began a new program on April 30, 2013 that ended the issuance of paper Form I-94 Arrival/Departure Records for many visitors. Foreign visitors arriving in the United States via air or sea who need to prove their lawful immigration status are now required to access their arrival information online and print their own Form I-94 Arrival/Departure Records (Form I-94). A hard copy of Form I-94 is required to begin employment, apply for a Social Security number, and obtain a driver’s license or identification document.

CBP has indicated that it expects this automation to save the government an estimated $15.5 million per year. Because advance information is transmitted only for air and sea travelers, CBP will continue to issue paper Forms I-94 at land border ports of entry.

If a visitor does not receive a paper Form I-94 record to verify his or her immigration status or employment authorization, the record number and other admission information will be available on the U.S. Customs and Border Protection website. A CBP officer will stamp the travel document (passport) of each arriving nonimmigrant traveler showing the date of admission, the class of admission and the date until which the traveler is admitted. The visitor will not need to print Form I-94 merely to provide it to the government upon departure. A CBP Fact Sheet may be found here.

Immigration Legislation

A number of pieces of legislation have been introduced into both the House and the Senate dealing with comprehensive immigration reform. The Senate has held hearings on its bill (S.744, Border Security, Economic Opportunity, and Immigration Modernization Act) and is in the process of “marking up” the legislation and considering 300 proposed amendments. We do not yet know when or if this legislation will become law, but we will keep you apprised of developments affecting employers.

If you have any questions, please contact Gabrielle M. Buckley at +1 (312) 609 7626 or any Vedder Price attorney with whom you have worked.

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Gabrielle M. Buckley

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