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Expired I-9 forms?  Don’t panic!

Posted by Jessica Eastman on October 15, 2019

An expired I-9 form can cause panic for business owners.  Thoughts of penalties or misfiling for using dated forms can cause buckets of stress.  Have you looked at the expiration date on your I-9 forms?  If you have, don’t panic! The current version of the I-9 from the Department of Homeland Security (DHS) expired on August 31st, 2019. 

Despite the expiration date however, you’re still using the correct form.  The DHS has released a statement that until a newer version becomes available businesses should continue using the expired (August 31st, 2019) version.

What is an I-9?

The form I-9 is the Employment Eligibility Verification issued by the Department of Homeland Security (DHS).  This form verifies that your potential employee is authorized to work in the United States.  The employee is required to proffer proof in the form of documentation such as passport, birth certificate, Social Security card, etc.  Employers must ensure that every employee has completed the I-9 regardless of whether they are citizens of the United States or not.  In addition to verification, the records need to be maintained for a period of three years from the date of hire or for one year after their employment has been terminated.  The DHS can and does audit employer’s hiring records, specifically the I-9, to verify compliance.

Violations of Form I-9

First and foremost, everyone should be aware that employing someone who is not authorized to work in the United States is illegal and is in violation of the Immigration Reform and Control Act (IRCA).  Violating this could result in civil penalties (fines up to $22,927) or even criminal charges against you.  However, hiring someone who is unauthorized to work in the United States is not the only way you can violate form I-9’s regulations and governing laws.

Employers are required to comply with the I-9 verification process.  Sometimes, you may receive a Final Non-confirmation during the e-verify process.  A Final Non-confirmation means that e-verify was unable to verify the employee’s authorization to work in the U.S.  While a Final Non-confirmation does not mean that your employee is unable to work in the U.S., it does mean that you need to report to the DHS the Final Non-confirmation.  Failure to comply with the I-9 verification process or to report a Final Non-confirmation to the DHS constitutes a violation.

Ok.  Here comes another obvious… Knowingly falsifying a document or knowingly processing a falsified document is fraud and constitutes a violation.  They may be a nice person, but it does not take away from the fact that you are committing fraud by submitting their paperwork.  The DHS reports that those who are unauthorized to work in the U.S. usually use stolen identities to gain employment.  Identity theft is a major problem and it is not a victimless crime.

Another I-9 violation is discriminating against an individual who is employment-authorized.  Yes, it happens.

While those are some of the more major violations, you should also be aware that filling out the form I-9 incorrectly is a violation.  This is the most common type of violation.  Failure to fill it out accurately and in its entirety can result in civil penalties reaching up to $2,292 per violation. 

Changes to the Form I-9

DHS has released a statement stating that businesses should continue to use the expired version of the form I-9 until a new version is released.  So, what can you expect from the new version?  According to their website (uscis.gov), the DHS is expected to extend the current version of the form without changes.  However, there are several anticipated changes to the form I-9’s instructions, providing clarification on a few points.  Here’s a breakdown of three revisions you can expect to find:

  1. Section 2 - In an effort to ease the strain of completing the form I-9 when hiring remote employees, DHS will revise/clarify that Section 2 may be filled out by anyone designated an authorized representative.  Despite a representative completing the section, it would remain the employer’s liability for any violations.

  2. N/A or “Not Applicable” - If the revision is approved, writing N/A or “not applicable” will no longer be necessary on the identify-document columns.  For instance, you will no longer need to write N/A in Lists A, B, or C columns if the column is not used.
  3. List C Documents - The List C documents currently include a Social Security card, birth certificate and Employment Authorization Document (EAD).  However, should the revision be approved, the EAD will no longer be a List C document, but will become a List A document.

On the USCIS website you’ll find a section called I-9 Central.  DHS has been and will continue to release updates on any revisions and the release date of the form I-9.  But for now, there’s no need to panic!  Just take a deep breath.

 

 


If you have questions about the I-9 form update or any other compliance questions, please reach out to HR for Health and SCHEDULE A CALL, or call: 877.779.4747, or email: compliance@hrforhealth.com today!

 


HR for Health is one of the nation’s leading Human Resources Management Systems (HRMS) used by small to mid-sized practices. HR for Health has provided the following complimentary articles to ensure you have a game plan when addressing complex HR matters.

 


 

Quick note: This is not to be taken as legal or HR advice. Since employment laws change over time and can vary by location and industry, consult a lawyer or HR expert for specific guidance. Learn about HR for Health's HR services

Topics: HR Tips, I9 form, compliance