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DHS considers overhauling the Form I-9 in a revised version this fall

Today, the Department of Homeland Security (DHS) published a Federal Register notice inviting the public to share comments on its proposed extension and revisions to HR’s favorite onboarding document, the Form I-9 Employment Eligibility Verification, before it expires on Oct. 31, 2022.

While a government form update may seem like a trivial matter, the Form I-9 (in particular) has been getting a lot of use these days. According to the Department of Labor’s latest Job Openings and Labor Turnover (JOLTS) report, there were over 77 million hires during the last twelve months (ending in February 2022), including many individuals who may have been hired and separated multiple times during this age of the “great resignation.”

And as most employers are painfully aware, there are very specific I-9 rules and procedures which must be followed to a tee in order to avoid potential penalties in the event of an audit.

DHS proposes structural changes to the Form I-9

According to the Federal Register notice and a subsequent notice circulated by the agency, DHS is proposing a significant structural overhaul of the Form I-9, as follows:

  • Compress Sections 1 and 2 from two pages to one page to reduce paper use and storage burden on employers.
  • Change Section 3 to a Reverification and Rehire Supplement that provides three separate areas to enter reverifications and rehires within 3 years of the date of the initial execution of an employee’s Form I-9. Employers would only print and use the supplement as needed, further reducing paper use and storage burdens on employers.
  • Update the List of Acceptable Documents to include a link to List C documents issued by DHS and the acceptable receipts listed in 8 CFR 274a.2(b)(1)(vi)(A-C).
  • Reduce and simplify the instructions from 15 pages to 7 pages, further reducing paper usage.
  • Remove electronic PDF enhancements to ensure that it can be completed on all electronic devices and is not software dependent. 

Below are snapshots of the proposed changes; all of the proposed documents can be viewed in the regulatory docket folder here: https://www.regulations.gov/docket/USCIS-2006-0068/document

Condensed Section 1 (click to expand)

Condensed Section 2 (also on the same page as Section 1):

The New “Reverification and Rehire Supplement” (formerly known as Section 3)

In addition to the changes that DHS highlighted above, I also spotted some other interesting, proposed modifications to the form including the following: 

Say “goodbye” to the N/A requirement

The proposed Form I-9 instructions note that employers must “leave a field blank if it does not apply and allow employees to leave fields blank in Section 1, where appropriate.” Elsewhere in the instructions, DHS writes that “[a]ll employees must provide their full name, complete address, and date of birth. If other fields do not apply, leave them blank.”

This new flexible data entry policy represents an important (and welcomed) change to the current Form I-9 rule that requires employees and employers to write “N/A” all over the form, even in fields (such as the email address and telephone number), which are optional for the individual to complete. Employers (especially those completing the form on paper) often discover these innocent mistakes after the fact and spend precious time making needless corrections.

The question remains, of course, whether ICE auditors (i.e., the ones actually inspecting and evaluating the forms) will also abide by this rule. While the agency has stated that it will generally not assess a fine for a missing “N/A”, some employers have been assessed such penalties from auditors for who apparently “didn’t get the memo.”

Alien authorized to work now referred to as Noncitizen authorized to work 

In keeping with the Biden Administration’s order to replace the word “alien” with a less “dehumanizing term” DHS is proposing that the fourth attestation box read “A noncitizen (other than Item 2. and 3. above) authorized to work until (exp. date, if any).”

The A-number, I-94, and Foreign Passport boxes have also been condensed into one entry box, and DHS has apparently removed the QR code box as well.

Each Additional Information Box notation should be initialed and dated

DHS reminds employers that they should use the Additional Information field to record any additional information required to complete Section 2, or any updates that are necessary once Section 2 is complete. This includes extensions of employment authorization or a document’s expiration date, replacement document information if a receipt was previously presented, or additional documentation that may be presented by certain nonimmigrant employees.

And notably, DHS now specifically notes that employers should “initial and date each additional notation.”

Employers referred to the M-274 Handbook for More Information

In order to reduce the Form I-9 instructions from 15 to 7 pages, DHS now refers employers to the online M-274 handbook for additional information on receipts, reverifications, and employees under the age of 18 (among other things).

As noted above, DHS is also now referring employers to I-9 central for examples of the mysterious (and often confused) List C, Employment Authorization Document issued by DHS which is often referred to as the “catch-all” document category. It’s unclear at this time whether DHS will provide a more exhaustive list than what is currently available online, but we can only hope!

Let your voice be heard

Employers should take advantage of this opportunity for public comment by writing to the DHS during the comment period, which ends May 31, 2022. You can submit a comment directly online by navigating to this link: https://www.regulations.gov/commenton/USCIS-2006-0068-0422.

In years past, the agency has carefully reviewed these comments and implemented many suggestions based on feedback received out in the field. At the very least, it provides you with a vehicle to gripe about a particular aspect of the form and make suggestions for improving the overall process and workflow.

Like most requests for public comment, the DHS is looking for feedback in 4 broad areas: (1) the I-9’s usefulness; (2) burden on employers (and new hires); (3) the quality, utility, and clarity of the information requested; and (4) any improvements which can minimize the burden – through electronic or other technological means.

While many of us could write a short novel in response to those questions, it’s important to note that the DHS is confined by law (and regulation) in the types of changes they can make to the form.

In the meantime, we’ll be monitoring this new development very closely and providing additional information and analysis on the Form I-9 revisions. Stay tuned!

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Do you have questions on today’s article? Or want to know how an electronic I-9 system with integrated E-Verify functionality can help? Please contact us for more information.


About John Fay

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 President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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