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New I-9 "Smart" Form is Actually a Smart Improvement

Turn a seasoned investigator from the Department of Labor or the Department of Homeland Security loose during an audit of an employer’s I-9 forms — the U.S. Citizenship and Immigration forms that employers are required to complete for new employees — and chances are that they will find some mistakes. Even some of the most diligent employers have incurred penalties for what most of us would consider minor errors. And when an audit really goes badly, an employer can face huge fines, debarment from federal contracts and, in some rare cases, a criminal investigation.

Because of the greater potential for government scrutiny, DHS’s new requirement that employers complete an electronic I-9 for all employees hired after January 21, 2017 would ordinarily cause me concern. However, having played with the new online form, I am happy to report that the new I-9 may actually result in employers making fewer mistakes. The form is very user friendly with good instructions throughout. Much like a well-written electronic tax filing program, the new I-9 form ensures that all required spaces are completed and includes drop-down menus identifying the types of documents that might be used to establish identity or employment authorization. And, unlike the new OSHA and EEOC reporting forms, the new I-9 is not actually “filed” with the government even though it is completed online. It appears — at least for now — that the main purpose of having an electronic form is simply to assist employees and employers in correctly filling out the form.

Wonderful as the new form is, employers should not require existing employees to complete a new form, if the employer already has an I-9 on file. Employers should remember that reverification should only be done for foreign employees who are working with temporary employment authorization. When reverification is required, however, new regulations provide that employees who have not yet received their new Employment Authorization Document will now be able to continue to work if they provide their employer with the expired EAD and a Notice of Action showing a timely filing of the application to renew the EAD, provided that form lists the same employment authorization category as that listed on the expired EAD.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.