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Employment NewsFlash
Five Traps To Avoid with the New Form I-9

April 24, 2013
Client Alert
On or before May 7, every employer must begin using the new Form I-9 to verify the identity and employment authorization of each new employee. Although the new Form I-9 includes very few substantive revisions, employers should be mindful of the following procedural traps for the unwary.

New Form I-9
    Trap #1: Failing to Instruct Employees Consistently
    The new Form I-9 adds fields for employees to disclose their phone number, email address and foreign passport number. Although buried in the instructions is a statement that responding to these inquiries is optional and for purposes of ensuring consistency with social security records, employees understandably may question the purpose of the requests and their optional nature. Employers should develop a consistent message in response. For example, employers may consider proactively explaining to employees that these data fields are optional, particularly given the risk that the government could use the information to contact current and former employees directly during an employer audit.

    Trap #2: Implementing for All Employees

    While a well-meaning employer may at first think it appropriate to implement the most recent version for even existing employees, such an action may expose the employer to discrimination claims and run afoul of the Form I-9 requirements. Instead, the new Form I-9 only should be used for existing employees who require re-verification, which occurs in very limited circumstances such as certain re-hiring situations and upon expiration of employment authorization for non-U.S. citizens.

    Trap #3: Completing the Spanish Version
    The Spanish version of the new Form I-9 is available as a translation guide for Spanish-speaking employees. However, only the English version may be completed and retained by employers not based in Puerto Rico.

    Trap #4: Losing Productivity Due to Unfamiliar Forms
    The government estimates that the new Form I-9 will take 22 more minutes to complete than the prior version. Personnel responsible for implementation should combat this administrative burden by familiarizing themselves with the new version, including reading the new Handbook for Employers and revised instructions.

    Trap #5: Using the Wrong Form
    Prior to formal adoption, draft versions of the revised Form I-9 circulated on the Internet. The correct form has a date stamp of “03/08/13 N” in the bottom left corner. Electronic Forms I-9 should also be revised for consistency. Personnel should be informed that the new paper Form I-9 contains two pages, as opposed to the prior one-page version.

As with any procedural change, certain complications may arise from implementation of the revised Form I-9. Proactively educating personnel working with such forms and developing consistent messaging should avoid turning a relatively minor form revision into a major administrative nightmare.

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