The Form I-9 Has “Expired”: What’s an Employer to Do?
Federal law requires employers to verify the work authorization of new employees by reviewing acceptable documentation provided by the employee and then completing an Employment Eligibility Verification (commonly known as Form I-9). The employer must do this by no later than the third business day of employment.
The U.S. Citizenship and Immigration Services (USCIS) periodically revises the Form I-9 and has previously made it clear that employers must use a current version of that form. However, the Form I-9 now on the USCIS’s website, which was last updated in March 2013, includes on its face an expiration date of March 31, 2016. Now that this date has passed, this raises a couple of interesting questions: One, when will the USCIS issue a new Form I-9? And, two, what are employers to do in the meantime?
When is a new Form I-9 coming?
At this juncture, the answer to this question is not entirely clear. On November 24, 2015, the USCIS published a notice that it intended to make certain revisions to the Form I-9. These proposed revisions are largely designed to reduce technical errors and help users complete the form on their computers after downloading it from the USCIS’s website. Some of the changes are more substantive, such as removing the requirement that aliens authorized to work must provide both their Form I-94 number and foreign passport information in Section 1.
The USCIS received public comments for sixty days and then made some additional tweaks to the proposed Form I-9. On March 28, 2016, the USCIS published another notice regarding the revised proposed form, seeking comment for an additional period through April 27, 2016.
After that, the USCIS could make additional changes and the Office of Management and Budget (OMB) must then give its approval. The final revised Form I-9, and its accompanying instructions, will then be posted on the USCIS’s website. At that point, employers will be required to utilize the updated form. It’s not exactly clear when this occur, but employers should keep their ear to the ground.
What are employers to do in the meantime?
Fortunately, the USCIS has provided very clear guidance on this question. On March 31, 2016, USCIS issued a notice that, until further instruction, employers should continue using the version of the Form I-9 now on its website, even though that form bears an expiration date that has now come and gone.
More to come . . . . .