Founders: Don’t Get Caught by Surprise by Immigration Enforcement

Whether it’s building the promised border wall or banning entry into the US of immigrants from specific majority-Muslim countries, President Trump has made it clear that immigration is and will be a priority for his administration.

It’s critical for businesses of all sizes, even the smallest of startups, to be aware that the hiring of any employee requires that specific documentation, including FORM I-9, must be reviewed and completed no later than the close of business on the employee’s third day of employment. This form is required for all new employees and not just those whose immigration status may be in doubt.

Here are some basic points to keep in mind:

• First, Section 1 of Form I-9 must be completed by the new employee no later than the close of business on his/her first day of work. As of January 22, 2017, all employers are now required to use the new version of this form (marked 11/14/16). All previous versions are invalid. This new version can be accessed at U.S. Citizenship and Immigration Services (USCIS).

• Although the new form is very similar to the previous version, some individual fields and the form instructions have been revised.

• The new form is not required to be used for existing employees.

• The new form may be completed by 1) Printing it and filling it out by hand, 2) Filling it out electronically, then printing and signing it (an employer can imbed an electronic signature for the employee provided certain conditions are met), or 3) Using an electronic Form I-9 vendor (making sure the vendor is collecting all the necessary information).

• This new “smart I-9” is not integrated with E-Verify and the use of E-Verify is not a substitute for the completion of a Form I-9.

• If printing out the form for completion, the instructions (now 15 pages in length) must also be printed for the employee filling out Section 1.

• When completing Section 1, N/A must now be entered in any fields that would previously have been left blank. This will be checked automatically when completing the smart version of the form.

• If the new employee attests to being a foreign national authorized to work in the U.S., he or she can now provide either an alien registration number, Form I-94 admission number or foreign passport number.

• A new employee must now affirmatively check a box indicating that he or she did not use a preparer or translator if that’s the case.

• The employer representative verifying employment eligibility must still be in the physical presence of the person being verified and must also see the original documents being presented. This includes remote employees.

• A new field in Section 2 asks for the new hire’s citizenship or immigration status. Employers must enter the corresponding number (1, 2, 3, 4) from the employee attestation on page 1.

• Employers are still required to accept documents presented by an employee if they reasonably appear to be genuine and relate to the individual.

• Not all acceptable documents are listed in the smart version’s dropdown menus.

• A large box has been added for additional information in Section 2. Comments written in this box should be limited to the Form I-9 or participation in E-Verify.

If the federal government conducts an audit of a business’s required immigration documentation, whether due to random selection or in response to a specific complaint, the lack of properly completed Forms I-9 will result in substantial and unnecessary fines. Do not be caught unprepared.

The information contained in this post should not be considered legal advice, nor does it establish an attorney-client relationship between the author and the reader. Readers should to seek the advice of legal counsel before taking any action based upon the content of this post.

Dan will be back soon with more legal insights for founders. Stay tuned.