Completing the preparer and/or translator section of the Form I-9
The I-9 was supposed to be an easy, straightforward kind of document – a simple piece of paperwork to record that a company has verified its new hire’s eligibility to work in the United States. To the uninitiated, the whole process really shouldn’t be all that bad. Yet those of us in the trenches know that completing an I-9 properly involves interpreting some often-conflicting instructions, navigating through numerous “gray areas” of the law, and ultimately hoping for the best.
While this may sound like fun (at least to a lawyer), most of us simply want to know the “correct” way of completing the form so that we can go about our merry ways.
Which brings us to today’s blog on the “Preparer and/or Translator Certification,” that often-ignored yet very important portion of the Form I-9 which resides directly beneath section 1. For many years, HR and hiring managers have wondered (often aloud in distressed tones) when this section should be completed for their new hire employees. Here are just a few questions which have been asked by these poor souls:
- Do I (as the HR or hiring manager) need to complete this section if I just answered one or two questions regarding the form?
- Does the new hire employee always need to sign section 1 if the preparer/translator Is completed?
- What if multiple people provided assistance to the new hire employee? Should we have each write their names in really tiny script?
- Is it a big deal if we forgot to have the preparer and/or translator section completed?
If you’ve ever uttered (or heard) any of the above statements, you’re in good company. The United States Citizenship and Immigration Services (USCIS) has provided us with some guidance on the preparer/translator section over the years, but you’d actually have to refer to several different sources (Form I-9, M-274 Handbook, I-9 Central, etc.) to get the full picture. While I can’t promise any I-9 miracles today, below is my best attempt to “demystify” the preparer and/or translator (“PT”) section and also provide a small glimpse into its potential future.
When to complete the PT section
First, let’s address the burning question on everyone’s mind: why is this section here and when do I need to complete it? First, let’s consider the purpose behind section 1 of the I-9 form: you are asking your new hire employee to provide you with some basic biographic information and attest to his/her citizenship status. For some, this process is fairly straightforward, and they will complete section 1 without a hitch. Others, however, may need help in completing the form (for a variety of possible reasons). Here are some real-world life examples when completing the PT block may be appropriate:
- A friend or relative helps translate some information on the I-9 form for the new hire
- The hiring or HR manager actually completes some information in section 1 of the form for the employee (either for convenience or out of necessity)
- The hiring or HR manager helps the employee answer a particular question (e.g., relating to the employee’s immigration status and associated information).
How to complete the PT Section
So let’s say you have an I-9 that fits into one of the scenarios above. The next step will be to ensure that the preparer and/or translator (which may be you) completes the section properly. Here’s what you need to know:
- All of the fields must be completed – this includes the individual’s name, address, signature, and date. Failure to properly complete this section will be considered a technical violation, which means you could be subject to a fine if it remains uncorrected.
- You’ll need to ensure that the new hire employee still signs his/her section of the form (with the exception of the special scenarios below). A missing employee signature is an even bigger problem, since these omissions are generally considered to be substantive violations for which Immigration and Customs Enforcement (ICE) may immediately assess a fine without providing the employer with an opportunity to correct.
- There are also two “special uses” of the preparer/translator section for minors and certain employees with disabilities (embedded links will take you to the USCIS I-9 central website where you can read all about them).
- A preparer and/or translator can also help an employee correct a mistake in Section 1 by drawing a line through the incorrect information and entering the new data. Then, both the employee and the preparer/translator should initial and date the correction. Finally, the preparer/translator should complete the PT section (if not previously completed), or if a different preparer/translator completed it the first time around, then USCIS would like the PT to enter his/her information somewhere in the margins.
Piece of cake, right?
Sometimes, completing the form for a new hire may involve multiple individuals (a veritable “I-9 party” if you will). For example, the HR person might complete part of the form and then ask a second individual to assist with translation. In these scenarios, the USCIS wants you to record the information for all of these individuals so they have a clear picture of who was involved. At present, there’s no easy way to do this, so the USCIS recommends that the additional multiple preparers and/or translators complete the Preparer/Translator Certification Block of a new Form I-9 (one per person) and attach that page to the employee’s form.
In the near future however, the USCIS will be releasing a brand new “smart I-9 form” (currently under public comment) which will enable employers to add multiple preparers/translators with the press of a button. See our prior blog post here for a run-down on the proposed changes. Our friends at McGuireWoods LLP also wrote a very insightful article discussing some potential concerns (and questions) with the new proposed form.You can read their blog here.
Dangers Lurking in your Preparer/Translator Section
As mentioned earlier, the primary reason behind the preparer/translator section is to document those instances when employees receive some sort of assistance in the completion of their biographic and citizenship information. But it also serves a very important worksite enforcement goal as well – to hold unscrupulous individuals accountable if they have knowingly assisted in providing false employee information in section 1 (usually relating to citizenship status).
How does the form accomplish that? Read the fine print: as with the employee section, the preparer/translator must attest “under penalty of perjury” that the information is true and correct. All of the sudden a little white lie on an I-9 form takes on a whole new level of importance.
The USCIS apparently wants employers to know about this potential risk as well. As noted by McGuireWoods, the instructions to the proposed form I-9 (mentioned above) now include the following warning: “If you serve as a preparer or translator and fail to sign your name in this field, you may be subject to criminal prosecution.”
Wow – serious stuff. Although the USCIS has not (yet) provided any justification for this new text, it does seem somewhat consistent with the agency’s view that failure to sign a required section of the form is very serious because it implies avoidance of liability for perjury. It will be interesting to see how this new language (in particular) evolves after the public comment period.
Can we use the preparer translator for electronic I-9 section 1 pre-population?
Last but not least, a word of caution regarding electronic I-9 systems. A few years back, many DHS auditors began to express some concern regarding the “pre-population” of section 1 data fields from other related HR systems (such as onboarding, applicant tracking, or background screening applications). Specifically, ICE has on multiple occasions expressed concern with pre-population since there is a risk that the new hire may not actually read the information that was pre-filled in section 1 (and thus may not be capable of making the attestation).
For a time, however, ICE had suggested that it may be permissible to pre-populate section 1 as long as the employer completes the preparer/translator section (although it was never quite clear exactly “who” should be signing this part of the form since technically a machine filled-in the data). In more recent years, ICE and other government agencies have not mentioned this procedure at all, and have generally discouraged the practice of pre-filling section 1. Based on all of this uncertainty, it’s best to discuss this matter with your own counsel carefully before deciding whether to pre-populate section 1 (and what process should be followed).
Stay tuned for more updates and blogs on America’s most complicated (and constantly evolving) form!