Question: I just hired a new employee and when I gave him a Form I-9 to complete, I noticed that it says “Expires 03/31/2016.”  Does that mean I can’t use this form anymore?  Is there a new Form I-9?
Answer: As you note, the current Form I-9, also known as the Employment Eligibility Verification, appears to have expired a couple of months ago.  Nevertheless, the U.S. Citizenship and Immigration Services (“USCIS”) advises that until further notice, employers should continue using that Form I-9.  The USCIS will be providing updated information on its website about the new version of the form, which is not yet available.  You can access the USCIS website at www.uscis.gov.
All employers, even those with only one employee, are required to complete a Form I-9 for every new employee hired.  The purpose of the Form I-9 is to ensure that employers hire individuals who are legally authorized to work in the United States, which includes U.S. citizens, noncitizen nationals, lawful permanent residents, and aliens authorized to work.
On the first day of employment, the employer must give the Form I-9 to the employee, who on that same day must complete Section 1 of the Form, including the employee’s name, address, date of birth, and an attestation, under penalty of perjury, of the employee’s status in the United States as a citizen, permanent resident, or other.  The employee must sign and date the form.
Subsequently, within three business days of the date employment begins, the employee must present to the employer an original unexpired document or documents showing his or her identity and employment authorization.  The Form I-9 lists acceptable documents to meet this requirement.  It is important that the employee choose which document or documents he or she wishes to present.  The employer cannot require that an employee present specific documents.
Once the employee has presented the original documents, the employer must physically examine each one to determine if it reasonably appears to be genuine and to relate to the person presenting it.  The person examining the documents must complete and sign section 2 of the Form I-9 certifying that he or she has examined the documents, that they appear to be genuine and to relate to the employee, and that to the best of that person’s knowledge, the employee is authorized to work in the United States.
Some employers choose to make photocopies of the documents presented.  If an employer chooses to do this, it must photocopy documents presented by all employees, regardless of position, and regardless of status.
Employers must keep an employee’s completed Form I-9 for the duration of the employee’s employment.  Once that employment relationship ends, the employer must keep the employee’s Form I-9 for three years after the date of hire, or one year after the employment relationship ends – whichever is later.
It is very important for employers to ensure that they keep these Form I-9 records, properly completed, and for the correct period of time.  The Department of Homeland Services, Office of Special Counsel for Immigration-Related Unfair Employment Practices, and the Department of Labor can come to an employer’s premises, with a minimum of three days’ notice, and inspect an employer’s Form I-9’s.  The employer must make these available to any of these agencies.  The penalty for failing to comply with these requirements ranges from $110 to $1,100 per form.