Glitches and Guidance Relating to the New Form I-9

As reported earlier this week, the United States Citizenship and Immigration Services (USCIS) has released a brand new version of the Form I-9 which must be used by employers starting on January 22, 2017. In revising the form, the USCIS expanded the instructions, added some additional fields, and also changed some of the rules for completing certain questions (based largely on stakeholder feedback over the past few years).

The most notable change, however, was the inclusion of a new “smart” or “enhanced” format of the I‑9 which automatically performs basic error-checking validation when completed using a computer. For example, individuals completing the smart form will see error messages when fields are missed, drop-down lists for recording documents, and in-line help taken from the Form I-9 instructions.

computer-user-cartoonAs with any new technology though, there are bound to be a few hiccups along the way. The I-9 form is an incredibly complex document (with many esoteric rules and sections), which, incidentally, is one of the reasons employers still make so many mistakes. And as it turns out, the USCIS also had a few “glitches” in their first released version of the form – as announced today on a USCIS teleconference on the new Form I-9.

But the good news is that the agency has been listening very closely to its stakeholders, and some of the technical issues have already been resolved. In addition, the speakers on today’s call provided us with additional guidance and information which every employer should know.

Read-on for a summary of the glitches and guidance below.

The SSN Switcheroo

We’ll start with the glitches. The most important technical issue discovered by the USCIS this week concerns the social security number (SSN) field in section 1. Employers using the smart I-9 version posted on 11/14/2016, noticed that certain numbers were being transposed when the smart form is printed for signature. For example, I entered 123-45-6789 in the SSN field in section 1, but when it printed, the SSN appeared as 123-34-6789.

The USCIS indicated that this technical issue was resolved as of 11/16, and encouraged employers to download the Form I-9 again from their website. It’s important to note that the form looks exactly the same (the revision date has not changed); only this time, the SSN appears correctly when printed.

Now if you completed any I-9s using the “errant” version (i.e., the form posted online from 11/14 to 11/16), the USCIS recommends that you check to see that the SSN was printed properly. In the event the SSN is incorrect, the employer should ask the employee to draw a line through the SSN, provide the correct number, and then initial and date the change (preferably in a different color pen).

Compatibility Issues

During the 90-minute teleconference call, many employers reported issues in viewing or downloading the smart I-9. For example, some employers were unable to open the form, while others received error messages on certain pages. The USCIS patiently responded to all of these questions and noted (in particular) that completing the new Form I-9 using Google Chrome can be problematic. They also mentioned that the form does not work well within a browser window and encouraged employers to download the PDF to their desktop and then open using the latest version of Adobe Reader (other PDF viewers will not work).

The USCIS has also just posted a flat “paper I-9” version of the form on their website which is unfillable (in case employers wish to complete the form entirely by hand). They also reloaded the 2013 version of the form (which really should not have been removed), and reminded employers that they may use either the 2013 or the 2016 version until January 21 (after which time, the employer must use the new version). To access all of the currently available Form I-9 documents, please visit this link here.

New Guidance and Clarifications

Aside from troubleshooting technical issues, the USCIS also addressed many questions regarding the new Form I-9 fields and instructions during the teleconference today. While many of these items will likely be published to the USCIS site during the coming weeks, here is a sneak peek at some of the more interesting (and useful) guidance that was shared today.

(1) Use of a P.O. Box in Section 1

Several callers asked whether it is permissible for an employee to enter a PO box in the section 1 address field – a question prompted by the USCIS’ removal of the “No PO Box” warning in the revised Form I-9 instructions.

In response, the USCIS noted that while they always prefer that the employee provide an actual residential address, the use of a PO Box is “no longer explicitly prohibited.” Yay! Score one for the employer. Incidentally, this change was actually brought about in response to concerns over employees who are part of a state address confidentiality or safe at home program (who understandably may not want to reveal their actual address).

One final note on PO Boxes, the USCIS representative confirmed (as noted in the instructions) that a PO box cannot be used in the Employer’s Business or Organization Address field in section 2.

(2) Are I-9s with electronic signatures still acceptable even though the smart form must be printed and hand-signed?

As predicted, the introduction of USCIS’ smart form is causing a bit of a confusion, particularly for those employers who are completing electronic I-9s. As USCIS noted on the call, the smart form is NOT an electronic I-9 and in no way impacts (or affects) employers who are using software to electronically complete and store their I-9s.

Employers are still allowed (and encouraged!) to use electronic I-9s as long as they follow the very specific record-keeping and safeguarding rules that are outlined in the Final Rule on Electronic Signature and Storage of the Form I-9. This regulation provides (among other things) several technical requirements which must be followed relating to electronic signatures, audit trails, and security. When in doubt, employers should contact experienced immigration counsel to discuss the electronic I-9 rules and requirements and arrange for an evaluation of the software they are using.

(3) Additional Guidance is Coming!

Several employers also asked when the USCIS will be revising its M-274 Handbook for Employers (the well-known and read compendium of I-9 guidance and tips) to reflect the changes to the form. The USCIS responded that they are actively revising the M-274 and anticipate publishing the new handbook sometime in January 2017 before the new I-9 becomes mandatory. Based on past experience, the M-274 may further enlighten (or perhaps complicate) the I-9 process, so it’s very important for employers to be on the lookout for this revised manual when the new year arrives.

In the meantime though, let us know if you have any questions or comments regarding the new form I-9. For a demonstration of our electronic I-9 system, please feel free to contact us here. You can also reach me by emailing at the address provided in my bio link below.

And stay tuned for more updates as the I-9 deadline approaches!

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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, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.