New I-9 form required starting April 3

April 3, 2009

Excerpted from New Jersey Employment Law Letter written by attorneys at the law firm of Pitney Hardin LLP

All employers are required to verify the employment eligibility of their employees by completing a federal Employment Eligibility Verification Form I-9 for each worker. Employers can use self-audits to verify that the employment eligibility documentation kept on file for their employees is accurate.

Recent changes
Effective April 3, 2009, the list of documents acceptable to verify identity for employment authorization purposes changed. Employers are required to use the new Form I-9 for all new hires and reverifications after April 3. Employers are no longer permitted to accept expired documents during the employment eligibility verification process.

Audio Conference: I-9 Form Update: Prepare for the New April 3 Deadline

The following changes were made to the list of acceptable documents:

• Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card) were removed from the list of acceptable documents under List A;
• foreign passports containing machine-readable visas were added to the list of acceptable documents under List A;
• passports from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association between the United States and the FSM or RMI, were added to List A; and
• the new U.S. passport card was added to List A.

I-9 self-audits

This is a good time to self-audit your I-9 files. The following tips will help ensure a successful audit:

• Keep all records pertaining to the audits.
• Confirm that the employee signed the I-9 form.
• Verify that the employee provided a document from List A or from Lists B and C. The forms should not contain a List A document with any other documentation. Having documentation from Lists A, B, and C is considered "over documentation" and may subject you to penalties.
• Make sure that the required information is filled out for each document received.
• Ask current employees for additional documentation if you discover that a form has documentation from either List B or C (not both). Fill out a new form indicating when the additional documents were received, and keep it with the original Form I-9 that was submitted.
• If an alien authorized to work in the United States provided documentation, make sure his alien number (or admission number) and expiration date of work authorization (if applicable) is documented in the appropriate section.
• Don't disregard forms that were problematic as originally filled out. Keep them with the corrected versions.
• Don't ask current employees for documentation to reverify their employment eligibility unless you have reason to do so. Singling out employees without a valid legal reason can lead to discrimination claims. You can, however, ask an employee to provide additional documentation if his Form I-9 was improperly completed at the time of hire or he is an alien authorized to work in the United States and the original work authorization provided to the company has expired.
• Don't keep photocopies of documentation for only some employees. If you are using E-verify, you must keep photocopies of all documents submitted with the Form I-9. If you are not using E-verify, you should either keep photocopies of all documents submitted by employees or no documents. Inconsistent decisions of what to keep and what to toss could lead to discrimination claims.

Employment Practices Self-Audit Workbook

Bottom line
A self-audit of your I-9 files can help employers and human resources defend against potential penalties for improperly completed documents. It's always better to recognize that mistakes were made and try to fix them before a government audit.

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Copyright 2009 M. Lee Smith Publishers LLC.NEW JERSEY EMPLOYMENTLAW LETTER . This newsletter is intended for general information purposes only, and should not be used or taken as legal advice or legal opinion on any specific facts or circumstances.

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