The July 2017 Edition of the Form I-9: What Employers Need to Know

Today, the US Citizenship and Immigration Services (USCIS) published yet another version of the Form I-9, a document which is often lovingly referred to as HR’s most favorite employee onboarding form. This latest incantation of the Form I-9 is marked with a July 17, 2017 version date (see lower left hand-corner of the form), and includes only minor revisions to the instructions and List of Acceptable Documents (as described in some detail below). The USCIS has noted that employers can use this revised version or continue using the Form I-9 with a revision date of 11/14/16 through Sept. 17, 2017. Starting on September 18, 2017, only this new version can be used.

That’s the good news. The bad news is that any change to the Form I-9, no matter how small or seemingly insignificant, can have an impact on an employer’s ability to stay in compliance with the law. This is true for employers of all sizes; for example, small organizations may not hear about Form I-9 updates (and new versions), and continue using outdated (and thus non-compliant) Forms I-9, long after the USCIS deadline. Meanwhile, large and small employers (especially those completing I-9s on paper) will need to make sure that all of their offices and locations throughout the US are informed of the new I-9’s existence and the change to the list of acceptable documents.

In an effort to demystify the new Form I-9 (and the various questions surrounding it), we’ve compiled the following information and best practices to help you ensure a smooth rollout at  your organization.

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. Unfortunately, the Form I-9 is no longer available in just one clickable link, but rather there are a variety of documents which you’ll need to download (as described below):

  • The first document (labeled simply “Form I-9”) is the “smart version” of the form, which includes basic error-checking capabilities and alerts.
  • The Form I-9 “Paper Version” is an unfillable form which must be printed for completion. Note that “paper version” is a bit of a misnomer since the smart version mentioned above must also be printed on paper and signed. I think it’s easiest to refer to this as the “flat version” of the I-9, since there are no fillable fields.
  • The Form I-9 supplement should be used by employers completing the flat version of the I-9 if your new hire had more than one preparer and/or translator provide assistance.
  • The Form I-9 Instructions (which are still 15 pages in length)
  • 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
  • Form I-9 supplement in Spanish
  • The Form I-9 Instructions in Spanish

Didn’t we just go through this? Why is USCIS issuing yet another version of the Form I-9?

If you’ve been following this blog closely, you might remember that the USCIS first gave notice of this update back in January when they noted that a new form was needed in response to the so-called “International Entrepreneur Rule,” an Obama-era regulation designed to enable qualified startup founders to temporarily stay in the US through a discretionary immigration benefit known as “parole” (not to be confused with the criminal kind of parole). The USCIS had announced that it needed to modify the I-9 in order to accommodate individuals paroled under this rule. At the same time, the agency indicated it would make a few other minor changes as well.

But as it turns out, the DHS just announced that they are postponing the implementation of the International Entrepreneur Rule from July 17, 2017 to March 14, 2018 to allow for public comment regarding a proposal to rescind the rule altogether. Despite this change, the USCIS has decided to continue with its planned Form I-9 release, to address a few other needed updates (as described below)

What’s Different about this new version of the Form I-9?

There are essentially three changes worth noting in the July 2017 version of the Form I-9 (covered in order below).

1. Changes to the List of Acceptable Documents

The first and most obvious change is a revision to List C in the list of acceptable documents, which now includes a new document type called the Consular Report of Birth Abroad (Form FS-240), which is issued to certain employees born overseas to a US citizen parent. The FS-240 has actually been in use for a long time, and so this change should help some employers that were previously told it was not acceptable.

At the same time, the USCIS also combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and the Form FS-240) into selection C#2 in List C. As a result of this change, the total number of separate List C document categories has been reduced from 8 to 7. Accordingly, the USCIS renumbered all List C documents except the Social Security card (see comparison snapshot to the right , which should hopefully make this clearer).

While this change is not that significant in of itself, it is worth noting that the “catch-all” employment authorization document issued by DHS will now be known as “List C #7” rather than “List C #8) – a distinction important for those who may have prepared policy manuals with the “List C #8” reference.

2. The OSC is now IER

As previously reported, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) changed its name to the Immigrant and Employee Rights Section (“IER”) in order to resolve confusion regarding another federal government agency with a similar name (and acronym). Regardless, the agency’s mission has remained the same – to prevent discrimination during the hiring process based on the employee’s citizenship, national origin, or immigration status.

To reflect this change, the very top of the Form I-9 instructions have been modified to refer to IER (instead of OSC), along with an updated web address where new hires can find out more information regarding I-9 discrimination and their right to work. While this change is also rather minor, it serves as an important reminder that I-9 compliance is not just about making sure the form is completed properly (and on-time). Employers must also take care to follow the anti-discrimination rules very closely and avoid treating an employee differently during the I-9 process.

3. Form I-9 Timing Clarification

Last but not least the USCIS made another note-worthy change in the Form I-9 instructions, where they removed “the end of” from the phrase “the first day of employment” in connection with the Form I-9 timelines. Specifically, they removed “the end of” from page 5 of the instructions when describing the I-9 document presentation requirements for individuals who are employed for less than 3 days, and from page 6 of the instructions when describing when section 1 must be completed.

While the agency did not specify the reason for this change, it was likely made to ensure consistency with the regulations which indicate that section 1 must be completed “at the time of hire,” without any reference to the time of day. Following this updated guidance, employers may want to revisit their own I-9 policies and procedures to ensure that section 1 is completed no later than when the employee starts work for pay.

Are there any other changes to the Form I-9 process worth noting?

But of course! For as it turns out, the USCIS has also updated its more comprehensive I-9 handbook (known simply as the “M-274”) to reflect these changes as well. But that’s not all, the USCIS also took the opportunity to modernize the M-274 by delivering it in a new online format which features a selectable table of contents (enabling you to drill-down in particular chapters and subsections).  You can also view the entire M-274 in one (very long) page by clicking on the “Print Manual” button.

While this new M-274 version will take some getting used to, they have included a handy “Table of Changes” directly in the document, which will be helpful for locating updates which have been made along the way. In a future blog, we’ll write a more detailed description of what those changes include, but for now, you can take note that the M-274 makes reference to all of the items changing in the July 2017 form edition and also includes a sample image of the FS-240 document which was added to the List of Acceptable Documents.

How should I prepare for this new Form I-9 release?

At the onset, you should decide when you will begin using this new Form I-9 (recognizing that as of this writing, employers have a 60-day grace period until the September 17, 2017 deadline). The answer to this question will largely depend upon your own organizational structure, priorities, and capabilities. The changes to the Form I-9 may be minor, 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.

Employers who are still using paper forms (or even software which is not quite up to snuff), should also take this opportunity to check out a compliant electronic I-9 and E-Verify software application, which is designed by attorneys and experts in the field. Electronic I-9 applications such as the Guardian system by LawLogix facilitate the entire I-9 and E-Verify workflow (from start to finish) and provide much-needed peace of mind in the wake of increasing I-9 enforcement. LawLogix has been closely monitoring these Form I-9 changes (since they were first announced in January 2017) and will provide a seamless update to the many organizations using the Guardian system.

For more information on Guardian or LawLogix in general, please feel free to contact us here. And stay tuned for more updates to our favorite form!

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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 Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.