USCIS Publishes New Form I-9 – Employers Must Use New Version Starting January 22

USCIS Publishes New Form I-9 – Employers Must Use New Version Starting January 22

Today, the US Citizenship and Immigration Services (USCIS) published the long-awaited “New Form I-9,” a momentous (and slightly scary) occasion for all those HR and hiring managers who are tasked with ensuring the correct completion of America’s most complicated onboarding form. If you’ve been following this blog closely, you probably already know all about the new Form I-9. Maybe you even have a CNN-style countdown clock…showing every minute and second until the new form I-9 becomes mandatory on January 22nd. Don’t feel embarrassed if you do – mine is currently showing as 68 days, 7 hours and 12 minutes, give or take a few seconds.news-i9

When the big day arrives, employers across the US will need to ensure that they are using this latest and greatest Form I-9 version to document the employment eligibility of all newly hired employees. The magnitude of this requirement should not be overlooked – according to the Department of Labor’s Job Openings and Labor Turnover (JOLTS) report, there are over 61 million
individuals hired in the US every year, and each one of these will likely require completion of our favorite form. And as most employers are painfully aware, there are very specific I-9 rules and procedures which must be followed in order to avoid potential penalties in the event of an audit.

But you’re in luck! Because today we’re going to review some of the most important changes which have been made to this latest I-9 incarnation in a (hopefully) concise FAQ format. In the coming weeks, we’ll be providing additional blogs and practice advisories related to the Form, so that by the time January 22nd rolls around, you’ll be able to complete an I-9 in your sleep (and sadly, yes, I have been known to do that). Let’s begin!

Where do I find the new Form I-9?

The USCIS has published the new form on their website, which can be accessed directly here: https://www.uscis.gov/i-9. As of this writing, there are 5 primary documents available for download:

  • The New Form I-9 itself (which includes several “smart” features as described below)
  • The New Form I-9 in Spanish, which does not include any smart features, plus as before, can only be used by employers and employees in Puerto Rico
  • The Form I-9 Instructions, which have been separated from the form itself and expanded to 15 pages in total
  • A new Form I-9 supplement which must be used if your new hire had more than one preparer and/or translator provide assistance
  • The M-274 Handbook for Employers, but note that this the OLD version which was first published in 2013 (they are still working on an updated edition)

What’s Different about the New Form I-9?

The new Form I-9 features several important changes, including expanded instructions, the ability to add multiple preparers and translators, and additional data fields for both the new hire and the employer representative to complete. As briefly mentioned above, the USCIS is now also offering a “smart” version of the Form I-9 which offers basic error-checking capabilities.

Here’s a quick recap of the most important changes:

Section 1

  • The USCIS has replaced the “Other Names Used” field in section 1 with “Other Last Names Used” in order to avoid possible discrimination issues and to protect the privacy of transgender and other individuals who have changed their first names.
  • Section 1 has been modified to request that aliens authorized to work enter EITHER their Alien Registration Number (A-Number)/USCIS Number OR Form I-94 Admission Number OR Foreign Passport Number and Country of Issuance. In the 2013 version of the form, employees who provide a Form I-94 number must also provide the foreign passport information.
  • If the employee does not use a preparer or translator to assist in completing section 1, he or she must indicate so on a new check box labeled, “I did not use a preparer or translator.” In addition, the form enables the completion of multiple preparers and translators, each of whom must complete a separate preparer and/or translator section.
  • If an employee does not provide any of the following information (either because not applicable or optional), he/she must enter N/A on the form (no blank spaces allowed): Middle Initial, Other Last Names Used, Employment Authorization Expiration Date, Alien Registration/USCIS Number, Form I-94 Admission Number, Foreign Passport Number, Country of Issuance, E-mail Address, and Telephone Number.

Section 2

  • The USCIS has added a new “Citizenship/Immigration Status” field at the top of section 2, where the employer is expected to write the number corresponding with the citizenship/immigration status selected by the employee in section 1. For example, if the employee attested to being a U.S. citizen, the employer must write the number 1 in this new field.
  • The Form I-9 instructions indicate that employers must enter “N/A” in section 2 if a particular document presented does not contain a document number or expiration date (as applicable).
  • Section 2 has a new dedicated area to enter additional information that employers are currently required to notate in the margins of the form (such as TPS extensions, OPT STEM extensions, H-1B portability, etc.).
  • The section 2 Last Name (Family Name) and First Name (Given Name) fields have been changed to Last Name (Family Name) of Employer or Authorized Representative and First Name (Given Name) of Employer or Authorized Representative respectively (presumably to prevent any confusion regarding the name that should be entered).

Section 3

  • When completing section 3 on a new Form I-9 page, the employer must also complete the Last Name, First Name and Middle Initial fields in the Employee Info from Section 1 area at the top of Section 2, leaving the Citizenship/Immigration Status field blank.
  • If an employee who is being reverified or rehired has also changed his or her name since originally completing Section 1, the employer is instructed to enter only the part of the name that has changed; for example, if the employee changed only his or her last name, enter the new last name in the Last Name field, then enter N/A in the First Name and Middle Initial fields. If the employee has not changed his or her name, the employer should enter N/A in each field of Block A.

Has the USCIS made any changes to the previously released “draft” version of the New Form I-9?

If you’ve been closely monitoring the various “draft” versions of the new Form I-9 since it was first introduced in November last year, you might be wondering if the USCIS made any additional changes to this “really final” version of the form. And the answer is, yes of course! But it’s worth noting that the changes are rather minor. Here are a few that I spotted:

  • The instructions for the section 1 E-mail address and telephone number fields now explicitly note that the fields cannot be left blank (even though providing the information is optional). If an employee does not wish to provide an email address or telephone number, he or she is instructed to write N/A.
  • All of the signature “date” fields (sections 1, 2, and 3) have been changed to “Today’s Date” – a not so subtle reminder that an I-9 signatory should always be entering the date upon which the signature was applied. The instructions take this a step further by noting that you should not “backdate this field.”
  • The instruction for reviewing documents now specifically indicates “no photocopies” unless of course you are examining a certified copy of a birth certificate.
  • The section 3 signature field and name of employer or authorized representative field positions have been swapped, so that the signature is now on the left-hand side of the page (as it currently is in the 2013 version of the form).

How does the “Smart I-9” form work?

When you download the new Form I-9, the first thing you’ll notice is that the form has been enhanced with field-level error checking which is designed to prevent the most common mistakes. So for example, the form will complain (through an alert) if you attempt to “finish” section 1 without entering all of the required fields. This is known as an enhanced or “smart” I-9, and it’s very important for employers to understand the benefits and limitations.

First and foremost, the new smart I-9 form is not an “electronic I-9” as defined in the Department of Homeland Security (“DHS”) regulations. Employers filling out the smart I-9 version using Adobe Reader must still 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).

Second, and just as important, the smart form I-9 does not provide any kind of safe harbor or good “I-9 keeping” seal of approval from DHS. If you use the smart form and make a mistake (which is still highly possible), you will be held to the same standard of review when faced with an audit.

Now of course a smart I-9 is still much better than a not-so-smart “paper I-9” (i.e., if you just print it out and complete by hand). Small and solo employers, in particular, will likely appreciate the new form’s error checking and built-in prompts. However, if you’re hiring (or rehiring) with any kind of volume, you’ll likely need a full-blown electronic I-9 solution in order to address common I-9 hiring workflow challenges.

Should I wait until January 22 before using the New Form I-9?

This is perhaps the most difficult question, since the answer largely depends upon your own organizational structure, priorities, and capabilities. In their press release today, the USCIS reiterated that employers may continue to use the 2013 version of the form until January 22nd (at which time, the new form may be used). This is known as a “grace period” in compliance lingo, and as in other contexts, it’s a darn good thing.

The Form I-9 may only be two pages in length, but many employers have crafted well-designed (and sometimes even elaborate) workflows to support the timely verification of newly hire employees. Introducing a new form into that process should similarly require careful planning and thought to ensure a smooth transition. Plus, practically speaking, many employers will want to update their training materials and I-9 policy documents prior to going live with the new form (a process which can sometimes take days or weeks to fully accomplish).

Last but not least, for those employers who are still using paper forms (or even software which is not quite up to snuff), this grace period provides you with a perfect excuse to check out a compliant electronic I-9 software application, which is designed by attorneys and experts in the field. For more information on the Guardian Electronic I-9 and E-Verify software application, please feel free to contact us here.

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

*********

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.