DHS Proposes New “Smart” Form I-9 and Seeks Public Comment

Today, the U.S. Citizenship and Immigration Services (USCIS) announced they are seeking public comment on a newly revised “smart” version of the Form I-9 which is designed to reduce technical errors and address frequent points of confusion that arise for both employees and employers along the way.  For all of those I-9 enthusiasts out there, this would be the 13th version of the employment eligibility verification form, which originally debuted (to the chagrin of employers everywhere) as a result of the Immigration Reform and Control Act of 1986.

While a government form update may seem like a minor affair, the I-9 is no ordinary form. According to the latest labor statistics, employers across the US are hiring roughly 5 million new employees per month (each of whom will require an I-9 form). Moreover, certain industries (such as retail and hospitality) are seeing dramatic spikes in hiring as we enter the holiday season – leading to even greater numbers of I-9s which must be completed.

So will the I-9 form be getting another makeover in time for its’ 30th birthday? Let’s take a closer look at what we know so far.

 

Federal Register Notice

Today’s announcement comes courtesy of a 60-day federal register notice for public comment (along with supporting documents). As many employers know, the current version of the Form I-9 (rev 03/08/13) expires next year on March 31, 2016. As a result, the USCIS will need to either extend (or revise) the I-9 form (as required by the Paperwork Reduction Act) so that HR and hiring managers can continue completing new forms for all those newly hired employees. And for all of those wondering – yes, the I-9 form does go through a paperwork reduction analysis, a process which in recent years has ironically yielded longer and more complicated forms…but I digress.

A Quick Peek

So what can we expect this time around? As it turns out, the USCIS has been quite busy. Here is a quick run-down of the changes which are being suggested (most of which pertain to smart I-9 features):

  • Certain fields will be validated to ensure information is entered correctly (e.g., the correct number of digits for an SSN, unexpired document, etc.)
  • Help text on the screen for the various I-9 fields
  • Employers can enter multiple preparers and translators, each of whom must complete a separate preparer and/or translator section
  • New drop-down lists for the list of acceptable documents in section 2
  • A new dedicated area in section 2 to enter additional information that employers are currently required to notate in the margins of the form
  • At long last, the mysterious barcode has appeared in the form of a “QR code” that will appear (once printed) and be used to facilitate review by ICE auditors
  • The controversial “Other Names Used Field” is replaced with Other Last Names Used (which should be a welcome change)
  • Certain foreign nationals will only need to provide either their Form I-94 number or foreign passport information (rather than both).

The Proposed Form I-9 is NOT an electronic I-9

Despite all of the technological conveniences mentioned above, it’s very important to note that this proposed version is not an “electronic I-9” as defined in the DHS regulations. Employers using this “smart form” will ultimately still need to print the form, obtain handwritten signatures, store in a safe place, monitor reverifications and updates with a calendaring system, and retype information into E-Verify (as required).

Moreover, the new form will not integrate with human resource applications or enable customized workflows which are essential to organizations with distributed workforces and decentralizing hiring. For that reason, the form is most likely designed for smallish employers who only hire a few individuals on a yearly basis.

Let your voice be heard

Regardless of this distinction, it is expected that this version (or something similar) will eventually be required for all new employers (regardless of whether you are using the USCIS’ “smart version” or a truly electronic version that has been developed by a commercial software provider). For that reason, employers should take advantage of this opportunity for public comment by writing to the USCIS during the comment period (which ends on January 25, 2016). In years past, the agency has carefully reviewed these comments and implemented many suggestions based on feedback received out in the field. At the very least, it provides you with a vehicle to gripe about a particular aspect of the form and make suggestions for improving the overall process and workflow.

Like most requests for public comment, the USCIS is looking for feedback in 4 broad areas: (1) the I-9’s usefulness; (2) burden on employers (and new hires); (3) the quality, utility, and clarity of the information requested; and (4) any improvements which can minimize the burden – through electronic or other technological means. While many of us could write a short novel in response to those questions, it’s important to note that the USCIS is confined by law (and regulation) in the types of changes they can make to the form. So for example, you should not expect to see any significant changes to the List of Acceptable Documents (an area which is desperately in need of some review).

Send us your comments and questions!

In the coming weeks, we will be drafting our own comments and suggestions relating to the Form I-9, with a particular emphasis on facilitating the entire onboarding workflow and minimizing employer burden. As part of this feedback, we would love to incorporate as many real-world examples as possible to bolster our arguments that the I-9 should be a much simpler (and user-friendly) document for all involved. If you have a question, comment, idea, or even just a complaint about America’s most complicated form, please click on the link below to share your input with us. We’ll be collecting (and incorporating) these comments in our formal response to the USCIS in early January 2016.

 

In the meantime, we’ll be monitoring this new development very closely and providing additional information and analysis on the Form I-9 revisions. Stay tuned!

***

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, where he is responsible for overseeing I-9 product design and functionality while ensuring compliance with ever-changing government rules.