As we’ve mentioned in previous newsletters and blogs, the I-9 Form (Employment Eligibility Verification) developed by the USCIS (U. S. Citizenship and Immigration Service) was revised and enhanced earlier this year, and use of the new form was mandated effective May 8, 2013.  This new form is very different from previous versions, asks for new information, and has sections both the employer and employee must fill out.  Here is an update and tips on filling the form out correctly.

California employers must use the I-9 Form, and may use the E-Verify electronic verification website if they wish.  It is not mandatory since Governor Brown signed Assembly Bill 1236, “the Employment Acceleration Act of 2011,” into law which prohibits the state of California and any of its cities, counties, or special districts from requiring an employer (other than a government entity) to use E-Verify as a condition of receiving a government contract, applying for or maintaining a business license, or as a penalty for violating licensing or other similar laws.  Under this state law, California employers are free to use E-Verify on a voluntary basis or as required by federal contracts.  Even if you don’t use E-Verify, you must still fill out and retain I-9 Forms and keep them in a location easily obtainable within 3 days in case of an audit.

Here are a few general points we thought you should be aware of:

1. The form is available in Spanish, but can only be submitted in Spanish in Puerto Rico. You may use it for translation purposes, but have them fill out and sign the forms in English.
2. You can fill out the form 3 different ways:  use the hard copy form; use the fillable-printable form in .pdf format on the USCIS website (print, sign and keep copies); or use the form on the USCIS e-verify website.
3. There are instructions on the form.  If you need further clarification, view or download the “Handbook for Employers” from the USCIS website.
4. Correcting Mistakes on the Form — Do NOT use “white-out.”  Make the correction, initial and date or complete another form, attach the old form and add a memo with an explanation for the correction.
5. Retaining Copies of the Forms — You MUST retain completed I-9 paperwork (either hard copies or digital format) as long as the individual continues to work for your company either three years after the date of hire, or one year from the date of termination, whichever is later.  We recommend that you not file your only copy in the employee’s file, since you could be audited and they will need to see “ALL” your I-9 forms.  Keep them or a second set of photocopies in a separate location that you can access with 3 days of a notice of an audit.
6. You, as the employer, are responsible for reviewing and ensuring that ALL SECTIONS of the form are filled out properly.

Section 1:  Employee Information and Attestation

1.  IMPORANT: The employee MUST NOT sign the form any sooner than the day that employment is offered, and no later than the first day of work for pay.
2. You may not ask them for a social security number for this form unless you are filling it out on the E-Verify website.  Providing their number should be voluntary by them.  You may need it for other paperwork, but you can not ask for it here.
3. If you are using a translator to assist your employee filling out the form, the employee MUST sign the form themselves.
4. If you use a translator, he/she must fill out and sign the “Preparer/Translator Certification Block” on page 7.  The date fields on oage 7 page where the employee and the translator both sign MUST be the same date.

Section 2:  Employer or Authorized Representative Review and Verification

IMPORTANT:  You, the employer, MUST fill out and DATE section 2 no later than the 3rd business day after the employee starts working for pay.

1. As far as the documents used to verify the employee’s identification, you cannot ask them for specific documents.  You must give them the list of acceptable documents from the application packet, and then they choose which documents to provide to you.
2. The employee MUST be physically present when you examine the identification documents.  All you are doing here is verifying that the documentation is reasonably genuine and belongs to the person presenting it.  Photocopies are not acceptable except certified birth certificates. Documents that have expired are not acceptable.  There are a few exceptions – see page 11 of the Handbook for Employers.
3. If you participate in E-Verify, you can only accept documents from List B that bear a photograph.
4. The list of acceptable documents is duplicated on the last page of the Form I-9 packet.  Samples of many of the acceptable documents appear pages 57-64 of the Handbook and may help you in verifying these documents.
5. The person who examines the documents MUST be the same person who signs and dates this section.

Section 3:  Reverification and Rehires

1. If the employee is not a rehire or does not need his/her employment eligibility reverified, you do not need to fill out this section.
2. When an employee’s employment authorization document expires or is a rehire, you must reverify his or her employment authorization no later than the date employment authorization expires.
3. They must present new identification verification forms from Lists A or C with current employment authorization dates on them including an unrestricted Social Security card.
4. If they cannot provide current employment eligibility, you CAN NOT rehire or continue to employ that person.
5. There are some exceptions to this rule – please see page 28 of the Employee Handbook.

We are always available to answer your questions.  Give Bressler & Company a call at 559-924-1225 for clarification on any of the above requirements.