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USCIS issues another 30-day comment period to solicit feedback on the Form I-9

As we reported in April, the federal government is in the midst of reviewing the Form I-9 “collection” in anticipation of releasing a new I-9 version later this summer. To a certain degree, an “information collection review” is about as much fun as it sounds – involving an analysis of the data being collected, its usefulness and clarity, and the overall burden on those who must complete the particular form. Given how confusing the Form I-9 process can be, you might expect an avalanche of feedback from human resources managers throughout the US.

And yet, according to a Federal Register notice posting last week, the United States Citizenship and Immigration Services (USCIS) received only 21 comments about the Form I-9 from their initial 60-day notice. To be fair, I think many employers (and HR in particular) may have been unaware of the notice and the upcoming Form I-9 release. Others may simply be resigned to the fact the I-9 verification process will always involve a degree of “burden” on employers.

Regardless, you now have another shot at letting the USCIS know how you feel about the Form I-9. Comments are encouraged and will be accepted until July 5, 2019. The Federal Register posting above has details about how to submit your comments and feedback.

LawLogix Comments and USCIS Responses

As previously reported, LawLogix submitted a feedback letter to the USCIS on April 30th, which contained specific suggestions and comments. See here for our prior posting.

In announcing this latest 30-day comment period, the USCIS also provided us with a “Table of Changes” for the Form I-9 Instructions which incorporate a few of the specific suggestions made by LawLogix customers.

Below are three of the changes that the USCIS is proposing:

  1. Remote I-9 Instructions

In our letter to the USCIS, we described the difficulties that employers face in completing I-9s for remotely hired workers, and suggested that the agency add more specific instructions which clarify “who” may serve as an authorized representative of the employer (noting, that employers have a great deal of discretion in this area). While the USCIS has not gone as far as we would like, we are pleased to see that they are proposing to add the following text in the “Completing Section 2” area of the instructions:

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.

  1. The Use of “N/A” in Section 2

In our letter to the USCIS, we noted that the requirement to enter “N/A” in certain portions of the form can be burdensome and unclear. In their latest proposed revisions 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.

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.

  1. Document Title Confusion

In our letter, one of our clients recommended that the USCIS be more precise with the List C “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.”

I still think this clarification is rather buried in the instructions, and would be better placed on the actual “Lists of Acceptable Documents.”

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.” This was likely another error that was frequently occurring.

Do you have ideas on how the government can improve the Form I-9 collection process? Make sure to respond to their request for feedback by July 5, 2019!


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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