The New Form I-9 What Employers Should Expect and Prepare For by: Bonnie Hungerford, JD, MA HRIR

Why Worry? “It’s just a simple form.” “We didn’t hire any illegals, so we are fine.” “We’ll never get audited.”

Why Worry? In 2011:  2,496 I-9 audits were conducted  Criminally arrested 221 employers  Issued 385 Final Orders for $10.4+ million in fines

Why Worry? Because a seemingly minor mistake can be extremely costly…

Why Worry? I have yet to see a perfect audit!

Current Status of the Form I-9  Current version recently expired (8/31/2012)  What is an Employer to do?  Continue to use current form (even though expired)  Continue checking the USCIS website for the updated form

New Form in the Works  Back in May, during the 60-day commenting period between April and May regarding proposed changes to Form I-9, USCIS received over 6,200 comments regarding its proposed changes to the form.  Based on those comments, USCIS has made additional substantive changes.  Second comment period ended Sept. 21 st.  Still in draft form

Overview of the Proposed Changes  The 1-page form is now 2 pages  Total packet is now 9 pages (compared to 5 pages)  Slight changes/clarification to List of Acceptable Documents  Design is very different  Additional information requested  Wording changes throughout the form

Section 1: Old

Section 1: New  Now, all of Section 1 takes up one full page.

Section 1: New  Attestation: moved to the middle of the first page

Section 1: New  Preparer/Translator section now at the bottom of the first page

Section 2: Old

Section 2: New  Now on second page

Section 2: New

Section 3: Old

Section 3: New

List of Acceptable Documents: Old

List of Acceptable Documents: New

Changes in the Instructions  Section 1  Should never be completed before job offer acceptance  PO Boxes cannot be used  Only border commuters from Canada and Mexico can use an international address.  address and phone number are optional.

Changes in the Instructions  Section 2  If employer participates in E-Verify, the List B document must include a photograph  Must physically examine each original document  The examiner of the documents and the employee must both be physically present  Clear instructions on acceptance of receipts  If an employer keeps photocopies of documents, it must present the photocopies during an audit.

Best Practices: What Should HR Professionals Do?  Keep eye out for new I-9  Carefully review the proposed Form  If using a third party, contact them to ensure they are fully aware of proposed changes  Once new form is published, conduct extensive I-9 training for all employees who complete the I-9 for your company  Review and update all I-9 policies to ensure compliance

Internal Audits of Forms I-9

Getting Started  Review I-9 Handbook for Employers and all other guidance  Compile list of all current employees and their dates of hire  Compile list of all former employees going back 3 years, including the date of hire and date of termination  Gather all I-9s

Internal Audit  Determine which I-9s are past their retention deadline and shred  Review each I-9 to determine errors  Determine which is the best way to correct the errors on each I-9 (either on the I-9 or creating a new I-9)  Depends on the error

Corrections  Communication to employees  Set timeframes for corrections  Make copies of I-9s that need corrections  Make corrections on the copy, in different colored ink  Initial and date all corrections  Draft internal audit memo to binder  If you don’t have it already, prepare retention chart for each I-9.  Conduct training for I-9 managers

Common Pitfalls  Expired form  No date on employee signature  Failure to complete section 2  Incomplete document names or missing information  Too many documents  No date of hire  Employer pre-signing form  Backdating  White-out

Common Pitfalls  Failure to accurately calculate the retention deadline  The later of:  3 yrs from date of hire; OR  1 yr from date of termination. DOHDOT3 yr. DOH1 yr. DOTRetention 02/01/200706/01/201102/01/201006/01/ /01/201006/01/201105/01/201306/01/201205/01/2013

Best Practices: Establishing a Culture of Compliance  Obtain buy-in of executives through a business impact analysis  Conduct a thorough investigation of current state of I-9s and polices  Work with attorney or expert on remediation efforts  Establish a regular training program  Conduct annual I-9 audits!!!  Keep abreast of ICE guidance

Form I-9 Resources M-274 Handbook for Employers I-9 Central:

Thank You! Questions?