USCIS hears suggestions and feedback on I-9 Central
On Tuesday, the United States Citizenship and Immigration Services (USCIS) Verification Division held a listening session to gather feedback on the usability and functionality of the I-9 Central web portal, which is designed to be a one-stop resource for employers and workers seeking the latest guidance on how to complete the Form I-9 employment eligibility verification form. As usual, there were several immigration attorneys in attendance, representing their clients (companies, universities, non-profits, etc.) who have been feeling the pressure to get their I-9 house(s) in order. The meeting consisted primarily of questions/comments from the attendees regarding the usability of the I-9 Central resource and whether it could/should be approved. In case you missed today’s session, you can view the agenda items here as well as very quick USCIS PowerPoint with some I-9 Central screenshots here. In addition, I’ve summarized the major points discussed (including the highlights from USCIS) below for your further reading enjoyment. USCIS listens to prior feedback In November of last year, the USCIS held an I-9 listening session, which gave various stakeholders the opportunity to voice their concerns and wish lists in relation to the Form I-9 in general (including each section of the form, the list of acceptable documents, the I-9 verification process as a whole, and educational resources). Based upon that meeting, the agency has made a concerted effort to make the I-9 instructions and other materials clearer – from both the employer and employee perspective. In particular, USCIS has implemented the following in direct relation to those comments:
- More directions regarding how to examine the section 2 (identity and work authorization) documents
- Sample document images, most of which are also available on the M-274 I-9 Employer Handbook.
- A document matrix which shows which documents are valid for a particular employee status (citizen, non-citizen national, legal permanent resident, or alien authorized to work)
I-9 Central Home Page and “What’s New” As previously discussed, I-9 Central utilizes the familiar USCIS green-and-white website to deliver all of the I-9 Central content under the USCIS.gov domain. The home page is simple and functional, providing 8 general areas of I-9 topics with attractive icons and graphics. One of the more useful additions to the site is the “What’s New” page where USCIS will publish quick updates regarding I-9 related news. This is particularly helpful, considering there are MANY pages in I-9 central, and sometimes you just need to know the latest developments. [Shameless plug: you can also subscribe to this blog for up-to-the-minute news and tips.] USCIS has also recently added a special “Employee Rights & Discrimination” section which outlines prohibited employer practices, provides recommendations to prevent discrimination, and gives employees instructions on how to file a claim with the Office of Special Counsel for Immigration-Related Unfair Employment Practices or the Equal Employment Opportunity Commission. Lastly, and perhaps more importantly, interested parties can sign up for updates to I-9 Central by email (or RSS feed) and anytime there is an update, an alert will go out to you. Is there any Essential Information Missing from I-9 Central? While most attendees seemed happy with I-9 Central’s overall look and navigation, several attorneys in attendance remarked about missing or inconsistent information (when compared to the M-274 and other essential resources). Here are a few of the comments and questions expressed:
- Will I-9 Central be the “go-to” place for all things I-9 Compliance related? Or will the M-274 trump I-9 Central guidance? This needs to be clear, especially in light of ICE audits. USCIS suggested that perhaps they could include disclaimer language as to how I-9 Central should be used. Although no clear guidance was offered on this point.
- Would USCIS consider indicating when a particular I-9 compliance statement or rule has been “blessed” by another agency? For example, if USCIS discusses a rule on section 2 document abuse, it might be helpful to read that this has been approved by OSC.
- In light of increasing worksite enforcement, it would be helpful if I-9 Central maintained a “history” of all changes to the site – particularly those involving revisions in policy or procedure, so that employers can clearly document why/when they adopted a particular strategy. In addition, it would also be helpful to have historical versions of the I-9s posted on USCIS.gov.
- According to the What’s New section of I-9 Central, there were several changes made to the June 2011 version of the M-274. However, the PDF version on the USCIS site did not initially reflect those changes (this has since been resolved). In addition, the M-274 itself should have a preface which indicates the changes made over the previous version.
- “It’s the minutiae that always gets you in these audits,” says attorney and I-9 guru Mary Pivec. Mary pointed out that while the goal of I-9 central is to be a one-stop shop, it’s missing several crucial pieces – especially in regards to acceptable documents. For example, I-9 central displays only one possible version of the EAD and does not describe the elements of the card itself (which are in the M-274 handbook); there is no discussion of the various documentary requirements for immigrants; and only one version of the social security card is shown (even though there are many acceptable ones still in circulation). In addition, there is no guidance as to the acceptability of a Native American tribal document ( and no mention of the BIA website).
- The I-9 Penalty matrix indicates that “failing to comply with Form I-9 requirements” will lead to a fine ranging between $110 to $1,100. While this may be true some of the time, it’s not true all of the time, considering that there are technical/procedural failures which can be corrected without penalty. The matrix as is could thus mistakenly give the impression that any I-9 failure could result in civil fine against the employer. The area of technical versus substantive penalties is more complex, and I-9 central should provide more guidance in this area.
- The standard for reviewing documents is increasingly complex, and the USCIS should explain more clearly how far an employer has to go to make sure that a document relates to the employee (without violating the anti-discrimination rules or failing to do a good enough job according to ICE). Real life examples would help.
- The concern with I-9 Central is that you can get lost in the details – for example, in the storing/retaining section I-9 Central indicates that if an employer chooses to keep paper copies of the documents employees present, he or she “may” store them with the employee’s Form I-9 or with the employees’ records. This use of the word “may” however differs from the “must” that exists in the regulations.
- I-9 Central instructs that if an employee provides a document that does not reasonably appear to be genuine or relate to the employee or is not on the List of Acceptable Documents, the employer must reject the document and ask for other document(s) that satisfy Form I-9 requirements. While this may be a good solution for situations when the employee made an honest mistake, far more often employers are facing situations where the document appears fake and now they are being instructed to ask for something better (which, of course, will most likely also be fake).
- The latest M-274 provides an illustration on page 14 of how employers should complete section 2 of the Form I-9 for F-1 students in curricular practical training (which requires recording 3 documents – foreign passport, I-94, and I-20). The illustration shows all three documents being entered under List A, whereas I-9 Central instructs the user to “write the SEVIS number and the program expiration date from Form I-20 in the margin of Form I-9 near Section 2.”