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Double the Fun: USCIS Proposes New 2-page I-9 Form and Seeks Public Comment

On Tuesday, the U.S. Citizenship and Immigration Services (USCIS) published a notice seeking public comment on a newly redesigned version of the Form I-9. For all those I-9 groupies out there, this will be the 12th version of the employment eligibility verification form which originally debuted in 1987. Over the years, the form has endured mostly minor modifications – a checkbox here or a word change there to reflect changes in I-9 regulations, rules, or even the Agency itself. Throughout all of these revisions though, there has always been one constant upon which employers can rely: the I-9 form has just one page to complete (leading to the famous tagline – the most complicated one-page form in America). Well, dear readers, hold onto your I-9 file binders, because there is a new form coming to town!

Why does this matter?

According to recent USCIS statistics, the I-9 form, together with the M-274 Handbook for Employers, are the most downloaded files on USCIS.gov, racking up nearly 2.5 million hits in February alone. If you’ve ever been charged with completing, reviewing or auditing our favorite form, you’ll appreciate the significance of any changes to the I-9 process.

Introducing the New (Draft) I-9 form

Before I go too far into the weeds, I must reiterate that this is a “draft form” (not for use) which the USCIS released this week for public comment. Under no circumstances should it be used for I-9’ing new hire employees. As I alluded to above, there are some very noticeable changes to the form – both in terms of substance and formatting. The biggest change is that the form is now 2-pages long, which has enabled the USCIS to add room for an additional List A document (yay!) and more extraneous information for employees/employers to complete (boo!) Here’s a quick look at just a few of the changes and this author’s comments. If you want to express your own comments to USCIS (and I encourage you to do so), you can send an email to [email protected] and reference “OMB Control Number 1615–0047” in the subject. You have until May 29, 2012 to submit comments regarding the draft form.

The Form as a Whole

Form design is tricky business. What might be intuitive and functional to me could appear crowded and confusing to the next person (and vice versa). Overall, I think the USCIS did a fairly good job of redesigning the overall layout of the I-9 form. In particular, I like the shaded headings (Section 1, Section 2, etc.) and the boxed fields used for SSN, Alien Number, and other identification numbers which must be a certain number of digits. While some of the fields are definitely roomier, I’m a bit dismayed that certain fields and instructions are cramped. For example, I can think of at least 2 places I’ve lived in the US with street names which will never fit in that box. Obviously, not a big deal, but it can certainly lead to messy or incomplete forms. I also like the DHS seal at the very top left – if for no other reason than to remind both employees and employers that this is an official government form which must be taken seriously. However, I think the employee attestation (“I am aware that federal law provides for imprisonment…”) should be more prominently displayed or set aside from the rest of the form elements. As currently designed, it can be easily missed.

Section 1. Employee Information and Attestation

In addition to the items mentioned above, we now have 2 brand-new optional fields for new hires to complete: email address and telephone number. According to the Form I-9 instructions (which have also been extensively revised), these fields “may assist DHS in contacting you regarding verification of your employment authorization.” As an employee, I’m not exactly sure I see the advantage in providing that information. In the event my employer is audited, won’t DHS have other readily available contact information if they need to reach me? And from the employer’s perspective, it just invites more questions during the I-9 process. “Which email address should I use – my new company address or personal? Is it okay if I use a cell phone number? How will DHS use this information?” And from an attorney auditor’s standpoint, we now have 2 additional “optional” fields mixed in a sea of “mandatory” fields to train our clients about.

On balance, I’m not sure these particular fields are worth the trouble. In the employee attestation section, we have several changes including a new instruction which informs an employee that some aliens may write “N/A” for their work authorization expiration (intended primarily for asylees, refugees, certain citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, or Palau).

The form also has new lines and boxes to record the alien’s A-Number/USCIS number or Form I-94 admission number. Unfortunately though, I think the layout of these two fields will cause confusion, as it could easily appear to require both numbers. The USCIS is also now requesting the employee to provide his/her foreign passport number and country of issuance if the employee was issued the I-94 at an airport or land border. While requesting this information may have some merit, it is another field for employers to worry about. It also increases the likelihood that employers may request (or even demand) to see a foreign passport in order to verify the information – and thereby run afoul of anti-discrimination provisions. Section 1 biggest reason to cheer: the employee’s signature line has been replaced with a signature box, eliminating the “above the line” or “below the line” question which has plagued so many I-9 verifiers for years! Incidentally, USCIS has clarified on I-9 central that an employer does not need to fill out a new Form I-9 if the employee signs above the signature box.

Section 2. Employer Review and Verification

Sections 2 is now on the second page of the form, which provides a nice delineation  – page 1 is for the employee (or preparer) to complete and page 2 is for the employer to complete. There are several other improvements to section 2, including:

  • A clearer instruction that employers must examine one document from List A or a “combination” of one document from List B and one document from List C
  • More vertical space to record document information
  • Document title, issuing authority, number, and expiration date labels for Lists B and C
  • Arrow markers to highlight date fields
  • An additional space for a third document number and expiration date in List A
  • Separate boxes for the employer address – which will hopefully reduce the number of times the address is left blank

Regarding the second to last bullet point, many employers will be happy to see that they now have a dedicated space to record those extra documents which are sometimes required for foreign national employees (e.g., a Form I-20 or DS-2019 for a qualifying F-1 or J-1 employee). However, I wish they had also provided a space to record the document name. As is, it looks like we’ll still need to be writing certain annotations in the margins or whitespace – not an ideal scenario for a government-inspected form. Section 2 biggest reason to cheer: the form now clearly notes that employers should record the employee’s “first day of work for pay” (rather than the hire date – which may be different). More importantly, the date is now prominently displayed on its own line (rather than buried in the Certification paragraph). I think though that this field could still be easy to miss – so perhaps a bit more whitespace around the field would help.

Section 3. Reverification and Rehires

The biggest change in Section 3 is that the USCIS is no longer calling it “Updating and Reverification” but rather, “Reverification and Rehires” – which reflects a slight change in focus. One of the frequently asked questions surrounding the current I-9 form is whether you need to record name changes of existing employees (e.g., due to marriage or divorce). In recent versions of the M-274, USCIS clarified that recording name changes is optional, but if it is done, employers should use section 3. Is it possible that USCIS will soon suggest that section 3 should not be used for updating existing employees? Only time will tell.


All in all, I must commend USCIS for doing a great job in redesigning an often convoluted and confusing form. It’s clear that they have been listening to stakeholders and realizing that employers are truly caught between a rock and a hard place in light of increasing worksite enforcement and E-Verify mandates.  Yet despite all of these positive improvements, employers are still faced with the daunting task of ensuring timely and proper completion for virtually all new employees. As I-9 procedures continue to change, it’s more important than ever to work withexperienced immigration counsel (for training and auditing purposes) and to adopt a smart electronic I-9 solution which prevents errors on the form (whether it be one page, two pages, or even something more!)

Human Resources Today