Earlier in 2016, the federal government announced changes to the I-9 form used to document worker eligibility. Beginning November 22, employers will be able to freely download a new I-9 form from the website of the U.S. Citizenship and Immigration Services.
Federal law requires that employers hire only U.S. citizens and foreign workers with the legal permission to work here. Worker eligibility is documented via the I-9 and qualifying forms of ID. There must be a form on file for every employee, so an employer with 50 workers would have a minimum of 50 I-9 forms on file.
Given that the new I-9 form will be required for 2017, now would be a good time to review company files. Employers should also make themselves familiar with the new form by downloading a copy as soon as it becomes available. With the possibility of greater immigration enforcement beginning in 2017, companies really need to be on the lookout for inaccurate or incomplete paperwork.
Completing and Submitting Forms
Unlike other federal forms required of employers (think W-2s and W-4s) I-9 forms are not filed with Immigration or Customs. Instead, they are stored on-site along with each individual worker's personal records. Companies typically have forms for both current and former employees.
The idea of not filing I-9 forms with the government is where a lot of companies get in trouble. Not having to officially file makes it easy to get complacent about making sure one is completed with every new hire. In addition, some companies allow new hires to fill out forms digitally in order to avoid generating paper. This is a mistake. Federal law requires the forms be printed on paper so that new hires can actually sign them.
Companies must maintain paper copies of I-9 forms whether they do payroll in-house or contract with a third-party payroll service. Those records should remain in place for as long as an employee remains on the payroll. In cases of termination or voluntary leave, records should be kept for at least one year from the end of employment.
Compliance Requirement Dates
Although the new I-9 form will be available beginning November 22, companies need not be in compliance until January 21, 2017. Still, it's a good idea to start using the new form right away. Furthermore, companies should be aware that there are fines involved for lack of compliance. Employers will be responsible for compliance irrespective of any action taken by a third-party payroll service provider.
Fines start at $216 per violation and go up from there. The most egregious offenders could face fines in excess of $2,000. Simply put, it is not worth the risk to be out of compliance.
In closing, there are two additional considerations. First is the issue of accessibility. Even though I-9 forms do not have to be filed with Immigration or Customs, they still must be available for inspection by authorized government officials during normal business hours. Agencies with the authority to inspect I-9s include Homeland Security, the Department of Labor, and the Department of Justice.
The second consideration is the question of whether the Spanish version of the form can be used or not. The answer is simple: only by employers and employees in Puerto Rico. In the 50 states and all other U.S. territories, only the English form can be used for official purposes. Employers must require their workers to fill out an English form that will be kept as the permanent record. Spanish-speaking employees can still download and print the Spanish version for their own reference.