No – The Current I-9 Form Does Not Expire on 8/31/12

Contrary to the normal interpretation of the word “expire,” the current Form I-9 (OMB-0047) with a revision date of 8/7/09Y and an expiration date of 8/31/12 will not expire on August 31. On August 13, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice on its website for employer guidance as to Form I-9 compliance that the current Form I-9 should continue to be used until USCIS provides updated information about the new version of the Form I-9 as it becomes available. I-9 Central currently states that the Forms I-9 with the following revision dates are still valid:

• Rev. 08/07/09
• Rev. 02/02/09 N -- An “N” next to the revision date means that I-9 forms with earlier revision dates can no longer be used to verify employment eligibility. A “Y” next to the revision date means the form is valid until USCIS issues a new form with a revision date containing an “N.”

On March 27, 2012, USCIS published a proposed revision of the Form I-9 in the Federal Register (77 Fed. Reg. 18256), which would turn the form into a two-page form and increase the number of pages of instruction from two to six. It is important for employers to subscribe to updates from USCIS regarding I-9 Central and to review the What’s New section regularly.

Below are sample postings by USCIS on I-9 Central as to how to correct an error related to the use of an invalid version of Form I-9 as well as the challenges related to I-9 completion by staffing agencies:

Q. What should an employer do if an invalid version of Form I-9 was completed for an employee at the time of hire?

A. If the wrong version of the Form I-9 was completed when the employee was hired, an employer should try to rectify the error. The best way would be for the employer and employee to complete the current version of Form I-9 and staple the previously completed Form I-9 to the current version. Include an explanation of what happened, and sign and date the explanation. If both cannot sign the current version of Form I-9, the employer could try to rectify the error by:

1. Stapling the outdated, but complete I-9, to the current version and

• Signing the current Form I-9 version;
• Including an explanation of why the current version is attached; and
• Signing and dating the explanation.

2. Drafting an explanation of the situation and

• Attaching the explanation to the completed outdated Form I-9; and
• Signing and date the explanation.

As to the dilemma of staffing agencies and the responsibility for I-9 verification, I-9 Central provides:

Q. Who is responsible for verifying a new employee: the staffing agency or the business to which the worker is assigned? If the business hires the worker permanently, does the business verify the worker at that time? What date should the staffing agency enter in the Hire Date field in Section 2?

A. The entity responsible for verifying a new worker is the entity that is responsible for completing Form I-9 for that worker. The Form I-9 requirement is triggered when a person or entity hires an individual for employment in the United States. A “hire” takes place when employment begins in exchange for wages or other remuneration. Therefore, if the new worker is an employee of the staffing agency such that it is on the staffing agency’s payroll receiving paychecks from the staffing agency, the staffing agency is responsible for completing and retaining Form I-9. If the new worker is an employee of the business such that it is on the business’s payroll receiving paychecks from the business, the business is responsible for completing and retaining Form I-9. If the worker is an employee of the staffing agency, and the business to which the staffing agency has supplied the worker decides to hire that worker and pay the worker directly, the employee would be a new hire of that business, and the business would become responsible for completing a new Form I-9 for that worker from the date of hire.

In the case of a staffing agency, acceptance of an offer and entry into the assignment pool can be considered equivalent to an offer and acceptance of employment, after which Form I-9 may be completed. The agency does not need to delay the verification until the worker actually has accepted a particular assignment. The date the staffing agency should put in Section “Certification” of Form I-9 is the date of acceptance of an offer and entry into the assignment pool.

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This notice was authored by Shareholder Kathleen Campbell Walker and Associate Lisa Rios Donaldson from Cox Smith's Immigration and International Trade Practice Group.