On January 31, 2020, the new IRS Form I-9 became available for use. Beginning on April 30, 2020, employers will only be allowed to use the new Form I-9, edition 10/21/2019. Between now and then, employers may continue to use the previous version of the Form I-9 (edition 7/17/17).
The failure to use the correct version after April 29, 2020 is a violation of law that could lead to fines in an ICE I-9 audit. So while employers have the ability to continue using the previous version of the I-9 until the end of April, it is recommended that all employers switch to using the new version as soon as possible to eliminate any possibility of using the wrong form after April 29th.
In terms of the form itself, there actually are no changes in the form’s content between the new version and the previous version. Rather, the prior I-9 simply expired and the “new” I-9 was issued with an expiration date of October 31, 2022. Since there was no change in content on the forms, the forms should continue to be filled out in the exact same manner that was previously used. However, because they are essentially identical, the old version and new version can easily be confused for one another, which is all the more reason why employers should make the switch as soon as possible. The versions can be distinguished by two separate identifiers: specifically, the new version will say “Expires 10/31/2022” on the top right of the form and “Form I-9 10/21/2019” on the bottom left of the form.
While it is recommended to start using the new I-9 form immediately, there is always the possibility that many employers will fail to timely make the switch or will accidentally use the wrong version of the form after the April 29, 2020 deadline. In that case, there is good news. The Department of Homeland Security has stated that it is “okay” with the use of the wrong version of the I-9, as long as the documentation presented by the relevant employee was acceptable under the current rules at the time of hire. In this case, since the I-9 was essentially extended without any substantive changes, this requirement should be met. Additionally, the employer must either: 1) sign and attach a blank version of the current I-9 to the outdated I-9, or 2) attach an explanation to the outdated I-9 explaining that the wrong form was filled out correctly and in good faith.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.