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Round 2: USCIS makes additional changes to proposed Form I-9 revision due later this fall

The United States Citizenship and Immigration Services (USCIS) published another round of proposed revisions to the Form I-9 and announced a second public comment period for HR and other stakeholders that is open until August 8, 2022 – more on this below.

As you may recall, the USCIS released a first draft of proposed Form I-9 revisions in late March of this year, which substantially modified and condensed our beloved I-9 back into a one-page form (for most new hire scenarios) and made other modifications to both the instructions and the form as previously discussed on this blog.

In response, the agency received hundreds of submissions from employers and others interested in employment eligibility verification (and who isn’t these days!) regarding the proposed revisions. Based on those comments, the USCIS has now made several substantive and design changes to the Form I-9 and Lists of Acceptable Documents (Round 2!), as described below.

Don’t have time to read all the gory details? Check out the following executive summary to get the overall picture.

Executive Summary of Proposed Form I-9 Revisions by USCIS in July 2022

* USCIS largely ignored requests from some large industry organizations to keep Sections 1 and 2 on separate pages

* However, the agency took some positive steps to improve the data integrity of the form by restoring “separate” fields for Section 1 apartment number, USCIS/A-number, and I-94 number

* USCIS also increased the vertical height of field boxes in Section 2 and restored the List A 3 document section which comes into play for certain foreign national employees

* To make room for the spacing adjustments, they moved the preparer/translator section to a “Supplement A” (i.e., it’s no longer underneath Section 1)

* Reverification and Rehire (formerly known as Section 3) is now labeled “Supplement B” but is largely the same as was proposed in March

* Finally, the Lists of Acceptable Documents page got a few tweaks that put employers on notice of auto-extensions and additional M-274 resources

Detailed Summary of Latest Revisions (as compared with March 2022 Proposal)

One of the most noticeable revisions in the March 2022 proposed edition of the form was the compressing of Sections 1 and 2 from two pages to one page, a move intended by USCIS to “reduce paper use and storage burden on employers.” However, in the comments, many employers and stakeholders expressed a strong desire to keep the current 2-page edition which they found to be easier to complete and review. Many noted that having Sections 1 and 2 on separate pages created clear lines of responsibility (page 1 is for employees; page 2 is for employers), enhanced the integrity of the data being entered, and led to a significant decrease in errors as compared with the pre-2013 editions of the I-9 which were also one-page in length.

Several others also pointed out that “paper use and storage burden” in the I-9 context is becoming increasingly irrelevant since so many employers are now using electronic I-9 software applications that fully digitize the process and eliminate the need for paper and physical storage.

Based on this latest revision, it appears that USCIS was not persuaded by these arguments as they have decided to keep Sections 1 and 2 on one page as previously planned. However, the agency made several formatting and field-level adjustments to both Sections 1 and 2 to improve the data integrity as discussed and illustrated below:

Section 1 Changes  

 

  1. Apt number has been restored as a separate field, rather than being lumped in with the street address
  2. SSN boxes have been restored to ensure that employees completing the form on paper understand that the field calls for 9 digits
  3. Alien Registration Number/USCIS Number and Form I-94 Admission Number each have their own separate fields for noncitizen employees checking the 4th attestation box. Unfortunately, Foreign Passport Number and Country of Issuance are lumped together into one field, which will make it harder to validate that the employee has provided BOTH pieces of information.
  4. To make room for the additional fields, the preparer and/or translator section has been moved to a new Supplement A – more on that below.

Section 2 Changes

  1. The vertical spacing in each field box has been increased, including for the Additional Information field.
  2. Restored the numbers (1, 2, 3) next to the List A document titles.
  3. Restored the List A document #3 fields which are used to record additional documentation needed for certain noncitizen employees (e.g., F-1 students on CPT, J-1 trainees or interns, etc.). Previously, USCIS had suggested that employers enter this information into the Additional Information box, which would have likely led to errors and omissions.

  1. Rearranged the Section 2 signer information: (from left to right): name + title, signature, and today’s date. In previous proposed version, it was signature, today’s date, and name + title.

 

Lists of Acceptable Documents

In addition to the form changes discussed above, the USCIS also made a few wording tweaks to the Lists of Acceptable Documents (LOAD) page to address some of the concerns expressed by commenters earlier this year. Specifically, at the top of the page, USCIS changed the instructions to read that “All documents containing an expiration date must be unexpired.” They also added “Documents extended by the issuing authority are considered unexpired.”

In the current 10/21/19 version of the form, the page simply indicates “All documents must be expired” – an instruction which has long been considered misleading since there are several instances when an employer can accept an expired document that has been extended by virtue of an automatic extension, federal register notice, or other DHS-issued document or temporary policy (e.g., the previous COVID-19 allowance for List B documents). USCIS also included a link to a new page on I-9 central which outlines a variety of employment authorization extension scenarios.

Lastly, the List C(7) “catch-all” employment authorization document now references Section 6 of the M-274 Handbook for Employers which covers I-9 document scenarios for a wide range of non-citizens. As before, they also reference Section 12, which provides an overview of the various List A, B, and C documents that are acceptable. Unfortunately, the agency has declined to provide an exhaustive list of potential List C(7) documents, as was requested by many commenters.

Form I-9 Supplements

As mentioned above, the USCIS moved the Preparer and/or Translator section from the Section 1 page into a new “Supplement A, Preparer and/or Translator Certification for Section 1” which includes fields to be completed by any preparer and/or translator who assists an employee in completing Section 1 of the I-9. The Supplement A includes four sets of preparer and/or translator input fields, enabling a multitude of individuals (if needed) to complete, sign, and date each separate certification area.

Supplement B Reverification and Rehire replaces Section 3 on the current version of the form and is intended only for situations when an employee requires reverification, is rehired within three years of the date an original Form I-9 was completed, or provides proof of a legal name change. Aside from the new “Supplement B” title, this section largely resembles the proposed version that was announced in March of this year.

What’s Next

As required under the Paperwork Reduction Act of 1995, the USCIS is providing employers with another 30-day comment period relating to this Form I-9 extension so that stakeholders can review the recent changes implemented by USCIS that I’ve described above. The deadline to respond is August 8, 2022. To submit a comment, you can visit the Federal Register notice page here.

As before, I strongly encourage employers to provide additional comments and suggestions to USCIS on this latest rendition of the Form I-9. In years past, the agency has carefully reviewed these comments and implemented many suggestions based on feedback received out in the field.

When commenting, keep in mind that USCIS 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. LawLogix will also be providing our own comments as well, focusing specifically on how these changes impact employers using electronic I-9 systems.

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Have questions about this alert? Please drop us a line. And if you’d like to learn more about the Guardian Electronic I-9 and E-Verify system which simplifies and standardizes I-9 compliance, you can contact us here.

 


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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