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New I-9 Creates Risk for Employers

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James Irving
BKK Business Law Newsletter
May 2013

On March 8, the Department of Homeland Security adopted a new Form I-9. The I-9 establishes employment eligibility for a potential worker and is a required document for all new hires. Forms must be completed by all U.S. employers for all hires. Employers could face serious consequences for failure to properly and timely complete and maintain the new form.

The new I-9 is divided into two sections. The first section seeks personal information about the new hire and will presumably be completed by the potential employee. The second section is completed by the employer, who must review and assess various form documents that demonstrate the new hire’s eligibility for employment. These documents include a social security card, driver’s license, passport or birth certificate. However, the process can be tricky, because discrimination laws present liability risks if the employer requires or even requests a particular document to review.

The new I-9 must be completed and placed in the employer’s files within three days of the new hire’s start date. A failure to do so could result in serious penalties, including possible debarment for federal contractors and possible criminal sanctions for willful violations. Employers are required to sign the I-9 "under penalty of perjury."

While employers should migrate to the new I-9 immediately, the transition period extends until May 7, 2013, after which the new form will be required.