USCIS Publishes Latest Round of Form I-9 Questions and Answers

As many HR managers are keenly aware, the rules relating to Form I-9 completion are constantly changing (some would say, evolving), due in large part to the increasing attention being paid to employment eligibility verification in the US. For sure, the I-9 has been around for a very long time, but it’s only within the past few years that we’ve seen a very strong surge in government enforcement and the associated concern from employers who just want to make sure they’re doing everything right. The form may be only 2 pages in length, but there are a seemingly endless number of questions which arise during the verification process.

To that end, the United States Citizenship and Immigration Services (USCIS) has been publishing more frequent policy updates on its aptly named “I-9 Central” website, which are based (to a large degree) on actual questions received from employers around the country. In many cases, these employers are still using pen and paper to complete their I-9s (and hence the need for additional help), but we’re also seeing some new inquiries relating to electronically generated and stored I-9s.

If you haven’t yet visited the I-9 Central Q&A page, it’s definitely worth a read (although I highly recommend frequent breaks to avoid I-9 overload). And in an effort to simplify (and uncover) some of the recent updates from the USCIS, I’m providing a quick overview of six new question and answer guidelines released last month (September 2017). As you’ll see, these updates relate to a wide variety of topics including section 1 completion, document review, I-9 correction, and electronic I-9 retention and storage. Let’s dive in!

Long names can cause big headaches

At first glance, the section 1 Form I-9 fields seem reasonably spaced and formatted, but occasionally, you may have a new hire with a particularly long name which exceeds the bounds of what can entered on the fillable “smart” form or even an electronic I-9.  While employers frequently see this in connection with last/family names, you may also come across a first/given name which exceeds 25 characters (as described by an employer in the Q&A excerpt below).

When an employee has a long first name and the I-9 limits the first name to 25 characters, what are the proper steps to complete the I-9?

An employee with a very long name or multiple names may wish to enter their name on Form I-9 as it appears on the documents they plan to present to show identity and employment eligibility. Sometimes multiple first names are considered both first names and middle names, in which case the employee should follow the form instructions for the best way to enter multiple names. Employers may also have the employee complete Section 1 by hand and attach it to Section 2, whether it was completed by hand or on a computer.

Last Reviewed/Updated: 09/26/2017

While not directly answering the question, the USCIS notes that new hires should consider entering their name on the Form I-9 as it appears on the documents they’ll present, while also reading the Form I-9 instructions relating to names (neither of which may resolve the issue). In the worst-case scenario, employers are instructed to have the new hire complete the section 1 by hand which can then be attached to section 2.

One pointer missing from this Q&A is how to manage an E-Verify case in this scenario, since E-Verify will only allow a maximum of 25 characters in the first name field. Based on our experience, we recommend writing a case note in your I-9/E-Verify system and proactively reaching out to E-Verify in the event of a TNC. Resolving name mismatches can be time-consuming and burdensome (especially when both the SSA and DHS need to be involved), so employers should be prepared to offer full support to the new hire during this process.

It’s also very important to remember that employers are prohibited from taking any adverse action against an employee who is contesting a TNC, including terminating employment, suspending employment, withholding pay or training, delaying a start date or otherwise limiting employment.

Emergency (temporary) Passports

A new hire employee may show up with a limited validity US passport or passport card that was issued on an emergency basis (typically by a US consulate overseas). Emergency passports are generally valid for 12 months or less, and according to the USCIS, may be accepted for I-9 purposes as long as they meet the usual standards (contains a photo, relates to the person presenting it, unexpired, etc.).

Assuming the passport meets all of those requirements (and is not merely a receipt), there will be no further need to update or reverify the document when it expires (since US citizens should never be reverified under the I-9 rules).

Is a temporary or emergency U.S. passport acceptable as a List A document?

Yes. Employers can accept a U.S. passport, including a temporary passport or U.S. passport card issued by the U.S. Department of State, as long as it contains a photograph and, upon physical examination by the employer, appears to be genuine and relate to the employee. Employers may reference 8 CFR § 274a.2(b) for further guidance.

Last Reviewed/Updated: 09/26/2017

Digital Driver’s Licenses

Completing I-9s in the digital age may become even more complicated in the near future, as states consider issuing digital driver’s licenses that could be stored and produced on a mobile device.  Needless to say, the prospect of a fully digital driver’s license raises all kinds of thorny questions, not the least of which is how to validate the authenticity of these documents in a “Photoshop” world. Not surprisingly, the USCIS reiterated that employers may only accept hard copy versions of driver’s licenses at this time, but they did note that they are monitoring the situation and will issue updated guidance when the time is right.

Are digital driver’s licenses acceptable as a List B document?

No, not at this time. USCIS is aware of the efforts to develop digital driver’s licenses for residents of some states. These efforts are in their early stages, and we are in the process of evaluating digital licenses and their potential use in the employment verification process. When we have determined whether and how digital licenses might be used, we plan to publish updated information and guidance for the public. At this time, we only accept paper and hard copy versions of driver’s licenses.

Last Reviewed/Updated: 09/26/2017

Wrong I-9 Version Completed

If you’re completing the Form I-9 on paper, you’re likely familiar with the age-old dilemma of completing the wrong version of the Form I-9 when the employee was hired (a problem that has been exacerbated by the frequent updates we’ve been seeing to the I-9 as of late). In years past, the USCIS had advised employers to always complete a new I-9 in this situation, but now the answer is a bit more nuanced.

According to this latest guidance, employers have a few options they can pursue (assuming at the onset that the documentation presented was acceptable under the Form I-9 rules that were current at the time of hire). As described below, the employer can complete a brand-new I-9 all the way through and attach it to the previously completed I-9 along with an explanation; or they can attach the outdated but completed version to a new I-9 form which is signed (but not completed) and once again provide an explanation which is signed/dated; or they can simply write an explanation and attach it to the outdated version (without enclosing the new Form I-9 at all).

What should I do if an invalid version of Form I-9 was completed for my employee at the time of hire?

If the wrong version of the Form I-9 was completed when the employee was hired, but the Form I-9 documentation presented was acceptable under the Form I-9 rules that were current at the time of hire, an employer should rectify the error. Employers have two options to correct the error.

  • The employer and employee complete the current version of Form I-9 and staple the previously completed Form I-9 to the current version. Include an explanation of what happened and sign and date the explanation.
  • If the employer is unable to have the employee and employer complete the current version of Form I-9, the employer should:
  • Staple the outdated, but complete I-9, to the current version;
  • Sign the current Form I-9 version;
  • Include an explanation of why the current version is attached
  • Sign and date the explanation; or
  • Draft an explanation of the situation
  • Sign and date the explanation
  • Attach the explanation to the completed outdated Form I-9

Last Reviewed/Updated: 09/11/2017

Confused yet? You’re not alone. From a practical standpoint, the most important element here is to create some form of documentation that can be presented in the event of an audit which shows that you have acknowledged (and rectified) the error. Personally, I think creating a new Form I-9 is overkill, especially since it’s not your employee’s fault that a wrong version was used.

Purging Digital Records

As more employers are now using some form of electronic I-9 or digital storage solution, HR managers must play close attention to how the I-9s (and associated supporting documents) are being destroyed when the I-9 retention period expires. This question is important not only from an I-9 compliance perspective, but also a general risk mitigation approach (especially considering some of the high-profile data security breaches in the news these days).

Are there established procedures for destroying a digital Form I-9 when the destruction date is reached?

USCIS cannot comment on private business practices when the Form I-9 retention period has been reached. However, you must ensure that you comply with Form I-9 statutory and regulatory requirements. You must:

  • Retain the Form I-9 for three years after the date of hire or one year after the date employment is terminated, whichever is later; and
  • Make the form available for inspection by officers of DHS, the Immigrant and Employee Rights Section in the Department of Justice Civil Rights Division, and the Department of Labor.

A completed Form I-9 contains personally identifiable information, such as an employee’s name, Social Security number, and address. This information must be protected and properly destroyed or disposed of if no longer needed.

Last Reviewed/Updated: 09/26/2017

While the USCIS declined to comment on any specific business practices that should be utilized, they reiterated the importance of maintaining the security of the I-9 documents (which needless to say, contain a slew of PII). From a practical perspective, employers should carefully review their I-9 purging policies and procedures to make sure they are in-line with industry best practices for destroying sensitive data. If using an outside vendor, you should also find out their policies for handling data destruction, particularly in connection with a termination of service (i.e., when/if your contract expires).

QR Codes on Electronic I-9s

Last but not least, an employer inquired whether electronically generated I-9s must contain the “QR” code which was first introduced in the November 2016 version of the form. Contrary to popular belief, this code does not indicate any kind of “seal of approval” but instead merely collects the information typed into the form fields and converts it to a digital barcode that can be used by government officials for auditing purposes. USCIS confirmed as much by noting that the QR code is merely an optional feature that appears on their “enhanced” (or smart) fillable form once it has been completed and printed for retention.

Is the QR code required on an electronic version of the Form I-9?

No. The QR code, a feature of the revised Form I-9 available on USCIS.gov that generates upon printing, consolidates all of the information entered into each field in each section when the form is completed on a computer. The QR code is an optional field that should be left blank if the employer completes the form on paper. Further, employers and third-party developers may, but are not required to, incorporate the QR code feature when creating their own Forms I-9.

Last Reviewed/Updated: 09/26/2017

And from a practical standpoint, auditors already have more than enough to examine in the event of an electronic I-9 audit, further obviating the need for a basic printed barcode. The most important element for any employer using an electronic I-9 system is whether the software (and vendor) can produce the required audit trails, security information, and electronic signature confirmation which is increasingly being view (and scrutinized) by auditors across the country.

For more information on Form I-9 compliance (and the use of electronic I-9 systems), 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.