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Know the Law: Use the New I-9 Form to Verify Employment Eligibility

Written by: Thomas W. Hildreth

Published in the Union Leader (7/19/2020)

Q: I read there were changes to the I-9 form. Is there a new version I should be using?

A: U.S. Citizenship and Immigration Services published a notice in the Federal Register on Jan. 31 alerting the public to the release of a new version of the ubiquitous Form I-9, Employment Eligibility Verification document. The new form was available for download and use beginning on that date.

There was an initial 90-day transition time during which employers could use the new form, with a version date of “Rev. 10/21/2019,” or the prior version of the form with a version date of “Rev. 07/17/2017N.” The 2017 version was considered obsolete effective April 30, 2020, and only the latest version should be used moving forward.

The 2019 version is the latest in a long line of iterations of the form first introduced as a result of the Immigration Reform and Control Act of 1986. The latest changes are minor. The form itself is hardly changed at all. The list of foreign countries has been updated to reflect name changes relating to North Macedonia and Eswatini; changes which are only visible when completing the fillable Form I-9 on a computer.

Most significant to employers is a change to the instructions to clarify who can act as an authorized representative on behalf of an employer in completing Section 2.

Section 2 requires employers to complete and sign within three days of an employee’s first day of employment.

The person completing Section 2 must personally examine original documents presented by the employee to confirm the employee’s identity and employment authorization, and must be physically present with the employee at the time.

The new instructions now clarify that an authorized representative of the employer “can be any person you designate to complete and sign the Form I-9 on your behalf.” Such designation can be especially helpful in circumstances where an employer is hiring an employee remotely and has no other existing employees in the area of the remote hire to complete Section 2.

Notwithstanding the designation, the employer itself remains liable for any violations in connection with the form.

Care should be taken in choosing a designee for this purpose.

While many components go into a sound I-9 policy, a first principal is to start with the correct form.

Make sure that your team is up to speed on, and using, the latest Form I-9.

Tom can be reached at [email protected]. Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be emailed to know[email protected]. Please note – Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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