Employers: DHS Releases New Revised Form I-9, Employment Eligibility Verification

The United States Citizenship & Immigration Services (USCIS) has again changed the Form I-9, Employment Eligibility Verification. On January 31, 2020, the USCIS released the long-awaited revised Form I-9, Employment Eligibility Verification (Form I-9), with an edition date of “10/21/2019.” The changes are minor and the USCIS has accordingly revised its “Handbook for Employers: Guidance for Completing Form I-9.”

Though Form I-9 went into effect on January 31, 2020, the USCIS has permitted employers to continue using the prior version of the form until April 30, 2020. The USCIS has given employers additional time to make the necessary updates and adjust their business processes accordingly.

What is Form I-9?

Form I-9, Employment Eligibility Verification, is “used to verify the identity and employment authorization of individuals hired for employment in the United States.” All employers in the United States are required to implement procedures for the use of Form I-9 to ensure its proper completion for each individual that is hired for employment in the United States—citizens and noncitizens alike.

Failure to properly complete, retain, and store Form I-9 may have significant implications on employers from civil penalties to criminal prosecution depending on the severity of the underlying Form I-9 issues raised following a Department of Homeland Security random inspection, audit, or worksite raid. As was the case when I wrote about the last Form I-9 revision in July of 2017, “the Department of Homeland Security [continues to] increase[] employer immigration compliance enforcement and employer immigration policies and regulations are in a constant state of change. Daily, employers are caught off guard when Immigration & Customs Enforcement agents come knocking on Human Resources’ door, seeking to conduct random Form I-9 audits.”

The 2017 Form I-9

That last Form I-9 revision was released on July 17, 2017, with a Form I-9 expiration date of August 31, 2019. The 2017 revision included “adding the Consular Report of Birth Abroad. . . to List C. . . . All List C documents [were] renumbered and USCIS combined all of the certifications of report of birth that the United States Department of State issues. . . under List C, Selection C, Number 2.”

Since USCIS failed to release a revised Form I-9 prior to August 31, 2019, the USCIS directed employers to continue using the expired Form I-9 until a revised version was released. This caused great confusion with employers. Many in New Jersey and Pennsylvania raised concerns of penalties as a result of future Form I-9 audits and random Department of Homeland Security inspections when agents review Form I-9s completed on the expired version.

As a best practice, employers should consider attaching memorandums to the expired Form I-9s, noting the USCIS directive requiring the use of an otherwise expired federal government form.

The Revised Form I-9

The Department of Homeland Security has made the following revisions to the Form I-9:

• Form FS-240 – Consular Report of Birth Abroad has been added to List C. Employers who will be submitting their Form I-9 online will now be able to select Form FS-240 from the drop-down menus available in List C of Section 2 and 3. Form FS-240 can also be used by E-Verify users while creating a case for an employee who has used this document for Form I-9.
• All certifications of report of birth issued by the Department of States have been combined into selection C, No. 2 in List C (Form FS-545, Form DS-1350, and Form FS-240).
• All the documents in List C, other than “Social Security Card,” have been renumbered. For instance, the Employment Authorization Document that is issued by the Department of Homeland Security has been changed from List C, No. 8, to List C, No. 7.
• Clarifications have been made as to who can act as an authorized representative on behalf of an employer.
• The Department of Homeland Security's privacy notice has been updated.
• A revised Spanish version of Form I-9 is available for use in Puerto Rico only.
• Revisions were made to the “Country of Issuance” field and the “Issuing Authority” field in Sections 1 and 2 respectively. The countries Eswatini and Macedonia have been added to be in line with their recent name change.

The revisions to the Form I-9 instructions are as follows:

• The old name of the “Office of Special Counsel for Immigration-Related Unfair Employment Practices” has been updated to the “Immigrant and Employee Rights Section.”
• The words “the end of” have been removed from the phrase “the first day of employment.”

The revised Form I-9 can be downloaded by clicking here.