Employer Alert: New Form I-9 Clears OMB Review Process
On August 25, 2016, the Office of Management and Budget (“OMB”) approved the latest revisions to the Form I-9, clearing the way for the form to be released to the public. Ever since the current version of the I-9 expired on March 31, 2016, employers have been anxiously awaiting the release of the new form, which will now include some “smart” error-checking features (available only when completed using an Adobe PDF viewer or application). As described below, the newly revised I-9 also features several new “structural” changes and instructions which will be important for all employers to know and learn.
According to the OMB Notice of Action, the new Form I-9 will have an expiration date of August 31, 2019, a 3-year period that is consistent with previous Form I-9 validity periods. In addition, the United States Citizenship and Immigration Services (USCIS) must update its I-9 system within 90 days to reflect the changes and indicate the revision date at the bottom of the form. More importantly, however, the OMB has indicated that the USCIS may accept the current (expired) version of the form for another 150 days (which, measured from the OMB approval date, would be January 22, 2017).
Needless to say, this 150-day time extension is potentially great news for employers, many of whom struggle to stay up-to-date with the latest I-9 changes and requirements. In 2013, the USCIS provided employers with only 2 months to start using the current version of the form – hardly enough time for HR to update all of the policy documents, training materials, and procedures which go along with the I-9. To make matters worse, employers were warned that if they failed to start using the form by the deadline, they might face civil monetary penalties in the event of an audit by Immigration and Customs Enforcement (“ICE”). Talk about being caught between a rock and a hard place!
It’s important to note that as of this writing, the USCIS has not yet published the newly revised I-9 form, nor have they indicated when they will do so. The agency has not posted any information either regarding the 150-day grace period that was recommended by the OMB. Therefore, employers will have to wait and see (and avoid counting their chickens before they hatch…)
Quick Recap of Important (Structural) Changes to the Form I-9 and Instructions
In addition to the error-checking features, the 2016 version of the Form I-9 also introduces some new fields and requirements.
- 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 certain foreign national employees enter either their Form I-94 number or foreign passport information (rather than both).
- Employees who provide an Alien Registration Number/USCIS number in section 1, must also indicate whether the number is in fact an A-Number or a USCIS number (even though currently these are the same).
- 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.
- 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.
- 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.).
- At long last, the mysterious barcode has appeared in the form of a “QR code” that will appear (once printed) and be used to facilitate review by ICE auditors.
Lastly, as previously discussed, it’s important to remember that this new “smart” I-9 form is not an “electronic I-9” as defined in the DHS regulations. Employers filling out the new form I-9 using Adobe Reader will still need to 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).
In addition, the new form will not integrate with human resource applications or enable customized workflows which are essential to organizations with distributed workforces and decentralized hiring. For that reason, medium and large employers should still rely upon a trusted electronic I-9 system to ensure complete peace of mind.
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