New Form I-9 Released! What Employers Need to Know.
Today, the US Citizenship and Immigration Services (USCIS) published the long-awaited update to the Form I-9, a ubiquitous document which has the dubious honor of being called America’s most complicated 2-page form (by both experts and I-9 newbies alike). The USCIS has indicated that employers may use either this new version (which is marked with a 10/21/19 revision date) or the prior 07/17/17 N version until April 30. Starting May 1, employers can only use the 10/21/19 version.
For all of those I-9 enthusiasts out there, this will be the 14th version of the employment eligibility verification form which originally debuted in 1987. Over the last 30+ years, the form has stayed mostly the same, with the biggest change occurring in 2013 when it doubled in size (and fun) from one page to two. Meanwhile, the underlying rules and process for complying with the law has become increasingly complex, due in large part to the changing nature of employment (remote employees), the addition of a “mostly” voluntary electronic counterpart (E-Verify), and the ever-present threat of a Form I-9 inspection by Immigration and Customs Enforcement (ICE).
The good news is that the USCIS has changed some of the Form I-9 instructions to help clarify a few points of confusion (more on that below). The bad news is that there are still many traps for the “I-9 unwary” – a problem that is often magnified by the sheer number of I-9s completed every year.
But you’re in luck! This blog was designed to tell you exactly what you need to know about the new I-9 (in a FAQ format below). In the coming weeks, we’ll be providing additional blogs and practice advisories related to I-9 compliance and risk avoidance in general. 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 7 primary documents available for download:
The “Form I-9” which is a “smart” fillable version with some basic error-checking
The “Form I-9 Paper Version” which is a flat non-fillable version
The “Form I-9 Supplement, Section 1 Preparer and/or Translator Certification” which must be used if your new hire had more than one preparer and/or translator provide assistance
The Form I-9 Instructions, which are separate from the form itself
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 Supplement in Spanish
The Form I-9 Instructions in Spanish
What’s Different about the New Form I-9?
The Form I-9 itself looks identical to the July 17, 2017 version (that everyone has been using for the past three years), with the exception of minor non-substantive edits to the Form I-9 version (lower left-hand corner) and new expiration date (top right-hand corner). Employers that use the so-called “smart” version of the form will also notice that the USCIS added Eswatini and North Macedonia to the Country of Issuance field in Section 1 and the foreign passport issuing authority field in Section 2 to reflect those countries’ recent name changes.
While the lack of substantive alterations to the form is largely good news for HR (who often worry about new processes and rules), many in our industry feel that there was a missed opportunity by the USCIS to help make the I-9 a little bit easier to complete (and understand) by the roughly 6 million employers in the US who are tasked with completing it.
But the USCIS did change a few of the instructions on the Form I-9, some of which are based on feedback by LawLogix customers (see our comments here). These changes include the following:
- Clarified who can act as an authorized representative on behalf of an employer
- Updated USCIS website addresses
- Provided acceptable document clarifications
- Updated the process for requesting the paper Form I-9
- Updated the DHS Privacy Notice
Let’s take a quick look at a few of these changes (along with my commentary on why these revisions were likely implemented):
Completing Section 2: Employer or Authorized Representative Review and Verification
The Form I-9 instructions now contain this new paragraph:
You may designate an authorized representative to act on your behalf to complete Section 2. An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf.
Author’s Commentary: as many employers are painfully aware, completing I-9s for remotely hired workers can be challenging at best, especially as employers try to figure out “who” may serve as an authorized representative. This new instruction reminds employers that they actually have a great deal of discretion in this area as long as they remember that they are ultimately on the hook for any mistakes which may occur.
Employers struggling with remote I-9s should make sure to check out the Guardian (by LawLogix) remote hiring tools here.
The Use of “N/A” in Section 2
In their latest revision to the Form I-9 instructions, the USCIS is now stating that if you enter document information in the List A column (or alternatively List B and C columns), you do not need to enter “N/A” in the column(s) which are not being used. So for example, if you have an employee present a US passport (which is recorded in the List A column), you do not need to write “N/A” in all of the fields in the List B and C columns.
Author’s Commentary: I think many employers already realized this (and indeed the Guardian electronic I-9 and E-Verify software application enforces this rule), but it is certainly welcome news to those employers who were taking the time to write all of those unnecessary “N/A” values in Section 2.
Document Title Confusion
In our prior communications with the USCIS, we stressed that they should be more precise in their descriptions of the List C #7 “catch-all” Employment Authorization document issued by the Department of Homeland Security by providing examples and/or noting that an I-766 should be recorded in List A and not List C. While the USCIS has not provided the examples requested, they have added a notation which indicates that the List C Employment Authorization Document issued by DHS (List C #7) “does not include the Employment Authorization Document (Form I-766) from List A.”
In a similar vein, the USCIS has also added a new instruction noting that the List B ID card issued by federal, state, or local government agencies or entities “does not include the driver’s license or ID card issued by a State or outlying possession of the United States as described in B1 of the List of Acceptable Documents.”
Author’s Commentary: While these clarifications are useful, I think these types of notations would be better placed on the actual “Lists of Acceptable Documents” rather than buried in the instructions.
Do I need to complete this new version of the Form I-9 for my current employees?
Employers must remember that they should NEVER complete a new Form I-9 for an existing employee just because a new form version has been published by the USCIS. Doing so could be construed as an unfair documentary practice (formerly known as “document abuse) since an employer would essentially be requesting more documents/information than required.
To put a finer point on it, the USCIS notes that unnecessary verification may violate the law’s anti-discrimination provision, which is enforced by the Immigrant and Employee Rights Section (IER) in the Department of Justice’s Civil Rights Division. As we’ve described in recent blog posts, the IER investigates each and every claim it receives (and can also initiate an investigation on its own), so employers must always be careful not to “go too far” with their I-9 obligations.
When must employers begin using the new Form I-9?
According to the USCIS website, employers may continue using the prior version of Form I-9 (Rev. 07/17/2017 N) until April 30, 2020. Starting May 1, the new form must be used. This “grace period” is certainly welcome news to many employers. 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. 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.
Stay tuned for more updates in 2020 on our favorite HR form!