Guest Author: Sarah Ford, Employment Partner and Diversity Committee Chair
Given increasing federal attention to the issues of immigration and authorization to work, let’s do a quick “check in” on your new hire procedures.
- A new version of the Form I-9 became mandatory on January 22, 2017. You already know that you must begin the Form I-9 process with each new employee no later than his/her start date. But how do you know whether you are using the correct version? It’s easy. The new version says “Form I-9 11/14/2016 N” in the lower left-hand corner. Moving forward, you should use this new version for every new hire. The “N” signifies that older versions of the form, e.g. the 03/08/13 version, are no longer acceptable.
- What if you need to re-verify the employment authorization of an employee whose original Form I-9 is one of the older versions? Can you still use the Section 3 Reverification section of the employee’s original form? The answer is no. For any reverifications that are taking place after January 22, 2017, use the new Form I-9. Don’t discard the original form, of course! Just keep both the old form and the new form together in your I-9 binder.
- Does the new version of the Form I-9 have any impact on E-Verify procedures? The answer is yes, but only under very limited circumstances. Let’s start with some background. North Carolina employers with at least 25 employees must use E-Verify in addition to the Form I-9 to confirm each new hire’s eligibility to work in the United States. In South Carolina, all employers are required to be enrolled in and use E-Verify. Each State is different, so if you operate in other states, it is important to check local laws. For the time being, there is a conflict – one that will arise only rarely – between the new Form I-9 and the E-Verify software. If a new employee is an “alien authorized to work,” E-Verify requires the employer to enter the individual’s A#/USCIS # or I-94#. In limited circumstances, however, the new Form I-9 allows such individuals to provide only passport information in Section 1. In other words, the new employee will not have an A#, USCIS #, or I-94#. Under these circumstances, you will not be able to run an E-Verify check on the new employee. If you have a case like this, simply make a note to run an E-Verify query on the employee at whatever point the E-Verify software is updated. When will that be? Your guess is as good as ours. But at that time, you can enter “awaiting E-Verify update” as your explanation for the delay.
With immigration enforcement activity heating up, now is a great time to make sure that your policies, procedures, and files are in full compliance. To request an internal I-9/E-Verify audit or simply ask the employment authorization questions that have been weighing on your mind, contact Annette Ebright (Charlotte), Sarah Ford (Raleigh), or Elizabeth Gibbes (Charleston) today.