On Thursday, August 23, 2012, the U.S. Citizenship and Immigration Services (USCIS) published a new (and mostly improved) Form I-9 for public comment. If this announcement sounds eerily familiar, that’s because this is actually the second round of revisions for America’s most complicated one-page (now turned two-page) form. Earlier this year, the USCIS released a first draft of the proposed Form I-9, which resulted in an astounding number of comments (6,200+) from employers and others interested in employment eligibility verification (and who isn’t these days!) Based on those comments, the USCIS has now made several substantive (and design) changes to both the proposed Form I-9 and the Instructions, which I describe below in detail.
While the form itself is still under review (see our blog post discussing the extended comment period), employers are well-advised to closely analyze these changes with counsel to determine whether processes, policies, and employee handbooks should be revised to match the new form and instructions. One of the first tasks for employers may be to adopt an intelligent electronic I-9 system to complete this process more efficiently, especially in light of the fact that the agency has increased the estimated paperwork burden (found on page 6 of the instructions) from 13 minutes to 35 minutes per I-9 form!
Regardless, we are definitely nearing the finish line, so let’s take a closer look at what may be our new final I-9 form.
Section 1
There was a lot to talk about in section 1 of the 3/18/12 version, and this remains true for the 7/17/12 version as well. While all of the fields remain intact, there are several important changes worth noting:
1. Last and First Name Fields: The USCIS has switched the parenthetical for the employee name fields so that it now reads “Last Name (Family Name)” and “First Name (Given Name)” rather than the other way around. I think this makes sense, and will likely lead to less confusion when explaining the form to employees.
2. Maiden Name has now become “Other Names Used (if any)”. The instructions indicate that you should “Provide all other names used, if any (including your maiden name). If you have had no other legal names, write N/A.” While I understand the intent behind this new instruction, I worry that we may now see employees cramming in a variety of other names in this field – leading to legibility issues.
3. Address – according to the instructions, only border commuters from Canada and Mexico may use an international address in these fields. Good to know.
4. The Social Security Number field now has nicely formatted boxes to accommodate the required 9 digits. I’m dismayed though to see that they have not indicated (on the form) that SSN is optional unless participating in E-Verify (this question arises A LOT).
5. Email Address and Telephone Number: despite all of the comments urging the removal of these new fields, it appears that USCIS has decided to retain them primarily for E-Verify purposes. Interestingly though, they have removed the words “optional” from the form itself (even though the instructions still indicate they are optional). In response to the many questions on why this information would ever be necessary to collect, the USCIS provided the following explanation in the revised instructions: “DHS may contact you, such as when your employer participates in E-Verify and it is necessary to advise you of a potential mismatch of the information provided to E-Verify and how to contest a potential mismatch. You may write “N/A” if you choose not to provide this information.” So it sounds like E-Verify will eventually be accepting this information and then automatically sending out alerts to employees as well. Yes, it’s a brave new world.
Section 1 Attestation
Moving to the middle of page 1, we see some interesting new developments for the employee attestation section, particularly for non-citizens.
1. A-Number vs. USCIS Number: in the instructions, the USCIS has now clarified the distinction between an A-Number and a USCIS number. Specifically, they note that the “USCIS number at this time is the same as the A-number without the “A” prefix.” Personally, I think the operative phrase here is “at this time,” considering how often they like to change labels on us!
2. A-Number/USCIS Number vs. I-94 Number: Based on many comments and requests, the form now clearly indicates that aliens authorized to work can provide either the A-Number/USCIS Number OR the Form I-94 admission number.
3. Form I-94 Admission Number: in anticipation of I-94 “automation” (which we’ll cover in a separate blog post), the instructions now indicate that aliens can find the admission number on Form I-94 or “as directed by U.S. Customs and Border Protection in connection with your arrival in the United States.” Needless to say, I think these instructions will need to be revised again once DHS has figured out whether an I-94 number (of some sort) will still be issued at the ports of entry.
4. Barcode: There were also several comments concerning the mysterious “3-D Barcode” wording at the bottom of page 1 of the 3/8/12 version. Many respondents were curious how this barcode would be generated and whether it would have any bearing on future paper completion. In response, the USCIS has moved the barcode to the middle of page 1, added a “Do not write in this space” block, and added a second barcode on page 2. See, that will teach us! In all seriousness though, I do hope that USCIS clarifies the purpose and intent behind the barcode so employers can properly prepare for the new form.
5. End of Section 1: Last but not least, the USCIS has also added two nifty “Stop Sign” icons at the bottom of page 1 (replacing the previous “Go to Next page”) which is designed to prevent employees from accidentally completing section 2.
Section 2
As with section 1, the USCIS has made several changes in response to your feedback and suggestions.
First and foremost, we see that they have moved the “Section 2” header to the very top of the page to make it clear that the employer (or representative) should be the one completing this part of the form. It’s also worth noting the inclusion of the words “authorized representative” which I believe was added to address questions regarding remote employees who are verified by a designated agent or notary acting in an agent capacity.
Next, they moved the employee name fields (Last, First, and Middle initial) underneath the Section 2 heading and added the words “from section 1” which implies that it’s perfectly okay for the employer to enter this information.
The biggest reason to cheer (in my opinion) is that the USCIS has added new fields to capture the document title and issuing authority of second and third list A documents which come into play for certain foreign national employees (e.g., an I-94 plus a Form I-20 or DS-2019 for a qualifying F-1 or J-1 employee). As it stands now, we often have to record these pieces of information in the margins (or anywhere there’s open space), which can become quite messy. To make this truly a win-win, we now need USCIS and ICE (in conjunction) to provide clearer guidance and illustrations on exactly how these fields should be completed for ALL possible variations.
Section 3
USCIS made only minor changes to section 3 (used for reverification and rehires), including more consistent shading and field labeling and a new “Print Name” field for the employer or authorized representative.
List of Acceptable Documents
As with Section 3, there were only minor changes here. Most notably, they simplified the description of the Social Security Card so that it now reads “A Social Security Account Number card, unless the card includes one of the following restrictions: (1) NOT VALID FOR EMPLOYMENT; (2) VALID FOR WORK ONLY WITH INS AUTHORIZATION; (3) VALID FOR WORK ONLY WITH DHS AUTHORIZATION.”
Conclusion
Once again, I commend USCIS for listening to stakeholders and incorporating many of our suggestions into this very important form revision. In light of the increasing number of ICE audits (and rapidly expanding E-Verify use), employers need all the help they can get to ensure this process is completed correctly and efficiently the first time around. While it’s still too soon to tell whether this new 2-page form will help (or hinder) compliance efforts, I’m encouraged at least that the government is indeed listening.
Do you have an opinion on the new Form I-9 that you would like to share with us and our readers? Please send us your comments and suggestions by completing the “Leave a Reply” fields below.
To discuss this topic further or learn more about how an Electronic I-9 compliance & E-Verify system can help you meet federal and state law requirements, please call 877-725-4355 or click here. Our electronic I-9 experts and trusted attorney partners will be happy to address your unique I-9 and E-Verify challenges.
I hope Lamar Smith does away with this entire procedure and just says we do E-Verify. This will save employer’s much money and do a much better job checking the workforce. A more complicated Form I-9 will not accomplish the basic task.
Ann (love the name by the way),
Most employers certainly have a sense of unease when it comes to Form I-9 and E-Verify. I agree that it would be much simpler if Congress could agree on comprehensive changes to the current immigration system, including the heavy burdens employers currently carry in the I-9 and E-Verify processes.
What is interesting about the proposed revision to the Form I-9, is the insertion of the word “Physical” in the examination of the identification documents in the instructions of Section 2. This will result in potential non-compliance for U.S. employers who continue to take advantage of the global work force. Although there is no law prohibiting video conferencing to record not only the examination of an employees identification but also record the employee to support a good faith defense against fraud minimize identity theft.
The Form I-9 continues to be a post hire requirement. Theoretically the employer has reviewed employee identification, conducted a background, and drug tested a potential candidate.
Typically employers direct the remote hire employee to a Notary Public who many times commit the following due to a variety circumstances:
A. Notaries will refuse service for fear of notarizing their own signature
B. Notaries will attach an acknowledgment to the Form I-9 and will not sign Section 2
C. Notaries will notarize the Form I-9 and charge excessive fees
D. Notaries will complete Section 2 incorrectly listing the wrong combination of identification
We are not suggesting the cessation of using notaries. We are positing provisioning Form I-9 completion certification and training, in addition to allowing technology tools to assist the notaries and all other authorized employer agents in providing Form I-9 processing support.
Remote hire employment is continuing to expand and it would seem supportive of USCIS if it would maintain there stated position of being technology neutral stated as follows:
” This rule does not limit employers to using one system for the storage of Forms I-9 electronically, nor does it identify one method for acceptable electronic signatures. Instead, this rule seeks to set acceptable standards for employers. Electronic signatures can be accomplished using various technologies including, but not limited to, electronic signature pads, Personal Identification Numbers (PIN), biometrics, and “click to accept” dialog boxes. DHS considered specifying acceptable technologies, but rejected this alternative as being too inflexible for employers’ needs and economic means. Moreover, to specify a particular technology would require continuous amendments to the regulations reflecting the rapid changes in technology. DHS concluded that this approach would be impractical and detrimental to employers since it would require continuous and potentially costly changes to employers’ business practices.”
-Executive Order 12866 (Regulatory Planning and Review)8 CFR Part 274a [BICE 2345-05; DHS-2005-0046] RIN 1653-AA47 Electronic Signature and Storage of Form I-9, Employment Eligibility Verification
If USCIS is concerned about “being too inflexible for employers’ needs and economic means”, it would rethink the potential imposition on an employers remote hiring practices and maintain the current language of Section 2 of the Form I-9 and the instructions regarding physical examination of employee identification documents. The current proposed Form I-9 revision in conjunction with proposed fine increases via the “Legal Workforce Act” could potentially cause major economic hardship to this growing sector of employers in the event of an ICE audit.
Physical examination of identity and work authorization documents by an authorized employer representative in Section 2 has always been a requirement pursuant to USCIS regulations. (See 8 CFR Section 274a.2(b)(B)(ii)(A) and also USCIS’ I-9 Central FAQs page.) The indication of this “physical” inspection requirement on the proposed second revision of Form I-9 (July 2012) is yet another subtle reminder to employers that any methods that do not involve actual physical inspection of employee documents will likely result in non-compliant I-9 verification. Given the long list of regulations and the constant revisions made by USCIS on its FAQs page, it’s easy for employers to be confused about various legal requirements. I think this gentle reminder is actually beneficial to employers and certainly puts employers who are not already physically inspecting employee documents on notice for non-compliance.
On another note, given the breadth of technologies currently available and the variety of needs employers have especially in a global workforce, your point on USCIS being more open to considering various technologies would certainly be well received by many of our readers. We’ll have to wait and see how USCIS responds, if at all, to the evolving technological community.