UPDATE: USCIS plans to issue another Form I-9 by July 17, 2017, but Trump’s regulatory freeze may postpone its release
Author’s Note: this blog (originally published on February 8th) has been updated to take into account the Trump administration’s January 20th memo ordering a freeze on all new and pending regulations (changes to the article are in red font). Special thanks to immigration attorney Kathleen Walker from Dykema Cox Smith for raising this important point and perspective.
By now, most employers are fully aware of the new Form I-9 (rev 11/14/16), which must be used to document and verify the employment eligibility of all new hires as of January 22, 2017. There have been countless articles, presentations, and warnings – so much so that you may be experiencing what we in the industry call “I-9 saturation.” But, this flurry of I-9 activity has been for a good cause, as many employers brace themselves for the increasingly high likelihood that worksite audits and employer sanctions may soon be on the rise under the Trump administration.
And against this backdrop, we’ve learned that yet another Form I-9 revision is in the works, scheduled to be released later this summer. Before you run screaming from the building, it’s worth noting that this particular revision is quite small (and minor), and should not have a significant impact on your hiring processes or overall procedures. Nevertheless, it will require employers to change their I-9 forms (yet again) and ensure proper communication is given to all of those HR and hiring managers who are responsible for I-9 verification. Let’s take a closer look!
Announcing the New(er) Form I-9
Last month, the Office of Management and Budget (OMB) published a Notice of Action (NOA) which clears the way for another revision to the Form I-9.
Here are the important dates to write down Issued on January 19, 2017, the NOA indicates the following:
Release date: USCIS is instructed to publish the updated Form I-9 no later than July 17, 2017
Mandatory date: USCIS is instructed to allow employers to use the previous version (Rev. 11/14/2016) N through September 17, 2017. After this time, all previous versions of the Form I-9 will be invalid.
But wait, there’s more! As it turns out, the OMB may actually have to delay the release of this I-9 even further due to President’s trump freeze on all new and pending regulations (as described below).
Why is USCIS changing the Form I-9 again?
This particular revision is driven (primarily) by a new DHS rule relating to certain foreign entrepreneurs who come to the US in order start or grow a business. Initially proposed by the Obama administration last year, the so-called “International Entrepreneur Rule” enables qualified startup founders to temporarily stay in the US through a discretionary immigration benefit known as “parole” (not to be confused with the criminal kind of parole).
The rule is scheduled to go into effect on July 17, 2017.
In order to qualify under this new rule, entrepreneurs must show substantial and demonstrated potential for rapid business growth, job creation and significant public benefit to the US (see here for a complete description of the various requirements). If parole is granted, the entrepreneur will be authorized for employment in the US, but only as it relates to his or her involvement with the startup. And since the startup needs to complete I-9s for all of its employees, the USCIS needed to modify the I-9 to accommodate this new scenario.
The rule is scheduled to go into effect on July 17, 2017 (which coincides with the Form I-9 release date), but it may be pushed out even further based on a Trump administration memo freezing all new and pending regulations. White House chief of staff Reince Priebus issued the memo on January 20th and specifically noted that regulations which have been published but have not yet taken effect should be temporarily postponed for 60 days from their effective date, except in emergency situations or other circumstances relating to health, safety, financial, or national security matters. The International Entrepreneur rule would appear to fall into the category of regulations to be postponed, which means the new startup policy (and the revised I-9) may be further delayed.
As of this writing, DHS has not provided comment on how the regulatory freeze memo affects the International Entrepreneur Rule, nor have they issued any additional rules delaying the effective date of the international entrepreneur regulation.
What changes are being made to the Form I-9?
Setting aside the timing uncertainty for now, let’s take a quick look at the changes that USCIS has in mind for the Form I-9. The Form I-9 instructions and the list of acceptable documents will be revised to indicate that a foreign entrepreneur can present a foreign passport and Form I-94 indicating entrepreneur parole as proof of identity and work authorization. Under the current version of the form, a foreign passport and I-94 are only acceptable for certain nonimmigrants authorized to work for a specific employer. Here is a mock-up showing the proposed change:
In addition, the USCIS is also taking the opportunity to add the Department of State (DOS) Form FS-240 Consular Report abroad as a new “List C” document. Employees born overseas to a US citizen parent may possess this document which is issued by the Department of State. The FS-240 has actually been in use for a long time, and so this should be a welcome change to employers (who previously were told by USCIS they could not accept it).
Last but not least, the USCIS is revising the anti-discrimination and privacy act notices on the Form I-9 instructions to reflect the new name of the Department of Justice unit responsible for enforcing I-9 related discrimination claims: “the Immigrant and Employee Rights Section (IER) in the Department of Justice’s Civil Rights Division.”
What should employers do now to prepare?
As noted above, there is considerable uncertainty regarding the date on which USCIS will release this latest version of the Form I-9 (it may be as early as July 17, 2017 or perhaps September 17 if we take into account the Trump regulatory freeze).
the USCIS must release the new Form I-9 by July 17, 2017 (the date on which the entrepreneur rule goes into effect), and employers are not required to use the form until 2 months later. This obviously gives employers plenty of time to prepare, and so at this point, I would simply mark it on your calendar for future review and action. When the time comes, you will then need to make sure you develop a plan for distributing the revised Form I-9; employers using electronic I-9 systems will also need to make sure their vendor is on top of the changes.
Finally, there is also a possibility that President Trump will roll-back the international entrepreneur rule, in which case the USCIS might postpone this revision altogether.
So in other words, as with all things immigration-related these days, employers must expect the unexpected!