Tips for I-9 compliance and new form I-9 update

In a recent Fifth Circuit Court of Appeals case, the Court unanimously held that an employer is permitted to sign Section 2 of Form I-9 based on "corporate knowledge." In the case in question, a recruiter viewed original documentation presented by new hires at a remote worksite in Texas, scanned copies to the corporate headquarters in Minnesota, where a representative completed Section 2, and proceeded to sign and date the document. We note this as a case of interest to many companies, but we caution employers that this decision DOES NOT comport with current U.S. Citizenship and Immigration Services ("USCIS") guidance which affirms that only the individual who has personally reviewed the original documents is permitted to sign Section 2 on Form I-9.

Current I-9 instructions (which were not as clear at the time of the employer action in this case that was before the Fifth Circuit) state "The person who examines the documents must be the same person who signs Section 2." Because the prior version of the instructions did not include this clear wording, the court held the employer did not have "Fair notice" of the agency's interpretation of the regulation.  Employers, particularly those with multiple worksites and remote employees, should continue to adhere to current USCIS guidance. It is important for employers to have a protocol in place for examining original documents with the Section 2 signatory present for I-9 compliance, even in the case of remote employees who work from home or employees who report to locations or company worksites separate from the company's principal place of business.

In other I-9 news, USCIS announced that the current Form I-9 will remain valid until January 21, 2017. Starting January 22, 2017, it will be mandatory for all employers to use the new version of the Form I-9 as they undergo proper employment procedures. In the meantime, employers can continue to use the current version which was last revised on March 3, 2013. We continue to await official publication of the new I-9 and expect to be able to bring you a link to the new form in next month's newsletter.