The Great I-9 Debate: Re-Designing the Most Complicated One-Page Form in America

Editor’s Note: today’s blog is courtesy of Josie Gonzalez of Gonzalez & Harris. On Tuesday, theUnited States Citizenship and Immigration Services (USCIS) Verification Division held a 2-hour listening session to gather feedback on the usability of the Form I-9 and the employment eligibility verification process as a whole. There were almost 200 people in attendance (with most participating by phone), representing various stakeholders in the I-9 process including AILA attorneys, companies, universities, and immigrant rights organizations to name a few. The entire meeting consisted primarily of questions/comments from the attendees (a true listening session indeed), which followed the USCIS agenda to discuss each section of the form, the list of acceptable documents, the I-9 verification process, and educational resources. While the comments in general were all over the map, one thing was abundantly clear: the I-9 form is in need of major improvements, both in substance and in form. Until that day arrives, let’s take a brief look at the most common issues raised by attendees as well as some interesting suggestions. At the very least, you can read this blog and know that you’re not alone in your I-9 frustrations! The 30,000 Foot View At the onset, the USCIS challenged participants to take a giant step back and consider how they would re-design the I-9 if they were starting from scratch. While there were many different opinions on how the form should look (it seems a 2-page form is definitely a strong possibility), the most prevalent recommendation was to simplify the process by writing clear instructions, using consistent terminology, and providing an abundance of guidance and leeway for employers that are trying to do the right thing. Several attendees also recommended that USCIS develop an electronic version of the I-9 (as an option), and provide a safe harbor for those that use it. USCIS reminded the audience though that several private companies already offer electronic I-9 software, and their main concern at the moment is the paper form.

Section 1 – Employee Information

As we all know, section 1 of the I-9 form prompts the employee to provide basic biographical information, including names, address, date of birth, and SSN. While this information sounds relatively straight-forward, the participants quickly pointed out several difficulties with the form. For example, can you leave the maiden name field blank or should you write “n/a” if it’s not applicable? What happens if your employee uses a hyphen in his last name or writes his signature outside of the box? These all sound relatively minor, but it’s clear that conscientious employers will often spend hours fretting over these finer points. The employee status checkboxes were also a major source of grief for employers, particularly in regards to the “alien authorized to work” selection. Several participants suggested that the form prompt the employee to identify his or her exact status (H-1B, TPS, asylee, etc) to help employers determine whether an expiration date is really required. [Note that some employees may leave the expiration date blank if they are aliens whose work authorization does not expire (e.g., asylees, refugees, certain citizens of the Federated States of Micronesia or the Republic of the Marshall Islands]. Some commentators also remarked that, if the employee’s status isn’t clear in section one, then  it’s difficult for employers to examine the section 2 documents to determine the correct documentation to record.

Section 2

Not surprisingly, we had a lively discussion regarding section 2 of the form, where the employer is prompted to record the documents presented, certify that they have examined the documents, indicate the employment start date and sign the form. One of the more contentious issues concerned whether employers should record the date of hire (offer plus acceptance) or the date the employee began work for pay (which is what is printed on the I-9 and in the regulations). While some suggested the form should have a box for each, it seemed the vast majority preferred leaving it as is – the thought being that the payroll date is more easily known and offer/acceptance is a nebulous concept. Regardless, everyone agreed that the hire or start date should be made more prominent (it’s easily missed in the middle of the certification paragraph), and that USCIS needs to provide clear and consistent guidance on which date should be written in this field. As is often the case, form “real estate” was also an issue for several participants, particularly those with H-1B, F-1 and J-1 employees that need to present several documents in order to prove employment authorization. For example, a J-1 exchange visitor can present a foreign passport, I-94 indicating J-1 status, and a DS-2019 which indicates the sponsor. If the J-1 is working outside of the program, he or she may also need a letter from the responsible officer. Writing all of those documents (and their respective numbers and expiration dates) onto the I-9 form can be challenging and inconsistent to say the least. Several commentators also expressed concern that employers frequently misunderstand the “Examine one document from List A OR one from List B and one from List C” instruction on the form and ask employees to provide three documents. To overcome that issue, attendees recommended emphasizing the “OR” on the form and also making it clear that over-documentation can lead to penalties from the Department of Justice.

Section 2 Documents

One of the most difficult areas for employers to grasp is the list of acceptable documents. Not only are there a lot of documents to read (and decipher), but the list is also incomplete when it comes to verifying foreign national employees. The M-274 employer handbook contains two tables which describe acceptable receipts and document combinations that can be used to prove employment authorization, but there is no mention of these on the I-9 form or instructions. Consequently, many employers may incorrectly complete section 2, or even worse, decline to accept valid documents that are not listed on the I-9 form. As such, we all strongly recommended that USCIS consider supplementing the I-9 form with a clear and concise list of “other” acceptable document combinations. Speaking of documents, I also urged the panel to reintroduce the naturalization certificate (N-550) which was recently redesigned for security purposes to include the beneficiary’s digitized photo and signature embedded into the  document. The previous naturalization certificate was removed from the acceptable list in 2007, and as a result, the newly naturalized have often been forced to quickly obtain a US passport or to remove the restrictions from their SSA card in order to accept new employment. It’s time to bring the N-550 back.

Section 3

The third and last section of the I-9 also raised a lot of concerns. As many of us noted, completing section 3 in a consistent manner can be challenging since it can be used for so many different reasons: reverifying employees with expiring work authorization, rehiring employees within 3 years of the initial hire date, or even recording simple name changes for existing employees. One commentator wanted a system whereby employers were forced to record any name changes on the I-9.  I strongly disagreed, stating that it would be unduly burdensome and the current rule of not having to update a name change unless done in connection with a section three reverification or update is preferable.  Note, that some ICE auditors are telling employers that a failure to record name change is a substantive verification violation.  Such admonition runs contrary to the I-9 and M274 instructions.[1] The name change issue primarily comes up when an employer is audited by the government and needs to verify that it has I-9s for all current employees. Since name changes will produce discrepancies between the payroll records and the I-9 forms, the easy solution is to write the employee’s new name (along with “AKA”) at the top of the I-9 form whenever a name change occurs. The employer can then properly match those I-9s with payroll records in the event of an audit. To address the rehire versus reverify scenarios, participants recommended several ideas including, different sections for reverifying and rehiring, adding a section for “acquired” I-9s relating to a merger, and making it clear when a reverification ends (for example, when a foreign national employee presents an I-551 green card or unrestricted social security card).

Educational Resources and other I-9 Issues

The last topic of the day concerned how USCIS can better educate stakeholders on proper I-9 procedure and the latest developments. Several commentators suggested the idea of an I-9 “toolbox” which would contain current (and archived) versions of various materials including the M-274, the I-9 form and instructions, FAQs, and government links. Several participants also suggested that USCIS create a “virtual I-9” on the web which could be used to illustrate how to complete the form in a variety of different scenarios and provide a forum for Q&A. Getting the word out (in cooperation with state corporation agencies or the IRS) was also another important consideration as many smaller employers are still unaware of what an I-9 form is or when it should be completed. This brings me to my last point about the I-9 form. Employers have been completing I-9s for over 20 years now with almost no supervision or very little oversight. Needless to say, many of these forms have errors and employers are naturally concerned in light of recent ICE audit activity. Now more than ever, employers need clear guidance on how to correct these mistakes, and this guidance should come from the “owner” of the form, the USCIS. For example, there is often missing information in section 1 of the form which is very minor (date of birth, address), and the employer has access to this data. Is the employer allowed to correct this information or do they have to go back and disturb the employee? And what happens if section 2 is missing a signature, and the HR manager is no longer around to confirm whether he or she saw the documents? What if an employer used the wrong edition of the I-9 but all relevant data and attestations are recorded?  Some ICE agents have informed employers that another I-9 has to be done on the correct form.  This seems like a wasteful exercise for the busy HR representative. A common refrain among the attendees was the need for a clear, simplified I-9 that would not result in the imposition of “gotcha” fines by ICE for paperwork errors when the employer has made a good faith effort to comply.  While we applaud the USCIS for holding this collaborative session and listening to all of our concerns, the time has come for some real change to this overly burdensome and often counterproductive process. [1] Instructions under “Section 3, Updating and Reverification” state: “If an employee’s name has changed at the time this form is being updated/re-verified, complete Block A.” See also,M-274 p  13.