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A New Version of the Form I-9

February 26, 2020

Client Alert:  Employers Must Begin Using Updated Form I-9 by May 1, 2020On January 31, 2020 U.S. Citizenship and Immigration Services (USCIS) published a new version of the Form I-9 that was approved by the Office of Management and Budget on October 21, 2019.  While USCIS has indicated employers may start using the updated form as of January 31, 2020, employers can continue using the old form through April 30, 2020.  However, employers must begin using the updated form by May 1, 2020.  This notice period provides employers with three months to update the form within their onboarding processes.Now that you know there is a new Form I-9, you may be wondering if the revised form contains any substantive changes.  Thankfully, it does not. The relatively minor changes include adding Eswatini and North Macedonia to the “Country of Issuance” and “Foreign Passport Issuing Authority” fields in Sections 1 and 2 respectively.  USCIS did provide additional clarification for the Form I-9’s instructions regarding who can act as an authorized representative; specifically,   “[a]n authorized representative can be any person you designate to complete and sign Form I-9 on your behalf.”  USCIS also provided clarification regarding “acceptable document[s],” indicating that employers do not need to insert “N/A” on unused lines in the List A, B and C columns.  Finally, USCIS issued clarification regarding several types of identification; specifically, that the “identification card issued by a federal, state or local government agency” listed as a qualifying document for List B is not the same as a “driver’s license or ID card issued by a State or outlying possession of the United States as described in B1 of the List of Acceptable Documents”  and for List C qualifying documents, an “Employment authorization document issued by DHS” does not include the Employment Authorization Document (Form I-766) from List A. Last but not least, USCIS updated the process for requesting the paper Form I-9 and updated its Privacy Notice.Takeaway: While the changes in the new form are minimal, failure to use the new form after April 30, 2020 is a violation of Section 274A of the INA, 8 U.S.C. 1324a and employers failing to use the new form may be subject to applicable penalties. And as always, employers should continue to follow compliant completion, storage and retention practices.

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