USCIS Releases Form I-9 Stakeholder Summary

Today, the United States Citizenship and Immigration Services (USCIS) released a detailed summary of its recent I-9 listening session, which gave various stakeholders the opportunity to voice their concerns and wish lists in relation to the Form I-9.  The meeting consisted primarily of questions and comments from attorneys, companies, and universities regarding each section of the form, the list of acceptable documents, the I-9 verification process as a whole, and educational resources. While many attendees were hoping to receive some guidance on the often enigmatic I-9 process, USCIS was primarily in “listen only mode,” as it begins work on a potentially significant I-9 revision through a Notice of Proposed Rulemaking (NPRM), which is tentatively slated for next year. In the meantime, USCIS has provided this summary (available in PDF below) to memorialize the many thoughtful (and occasionally disparate) suggestions on what can be done to improve the incorrigible I-9 form. Here are a few of this author’s favorite suggestions.

Section 1

  • Require employees who indicate that they are “an alien authorized to work” to specifically identify their status and classification on the form.

Completing I-9s for workers with temporary work authorization is akin to a puzzle wrapped in an enigma, shrouded in mystery. There are many seemingly esoteric rules in place here (the M-274 has several pages devoted to it) which dictate whether you must provide an expiration date, what that expiration date should be, and what documents are acceptable. While allowing an employee to indicate his or her status may not always clear the confusion, I think it would certainly be a step in the right direction.

Section 2

  • Strengthen the language in the instructions and add language to the certification section so that employers know that a representative of the company must be physically present when the employee presents the documents and signs the Form I-9 so the employer’s representative can attest to that fact.

This may seem fairly basic or even obvious to some, but clearer instructions (in general) will go a long way towards helping those employers that have routinely erred in completing this fundamental aspect of the I-9 process.

  • Clarify what is meant to be provided when specifying the “Document #” for a permanent resident card.

Interesting dilemma here that can often frustrate employers: historically, the A-number has always been considered to be the “document number” for a permanent resident card or an employment authorization document (EAD). In 2009, however, the USCIS updated its M-274 employer handbook and provided an illustration (without explanation) which shows the 13-digit application receipt number (or card number) being entered on the I-9. Is this now the proper number to use on the I-9? Or can you still use the A-number? And perhaps most importantly, will ICE care? Inquiring minds want to know…

Section 3

  • There were many good suggestions here, but I decided to go with the following. Specify whether it is the date listed by the employee at Section 1 or the date listed by the employer at Section 2 that controls the expiration date for reverification.

Now, you think you might already know the answer to this question but consider this. What happens if your employee indicates that he/she is an alien authorized to work in section 1, provides a date, and then presents a driver’s license and an unrestricted SS card (perhaps before SSA began restricting them). Do you reverify based on the expiration in section 1? Or do you look at the documents, and reach the conclusion that reverification is not necessary. These are just a few of the issues that employers (and their immigration counsel) face in their quest to comply with our archaic employment eligibility verification process. Is modernization or clarity on the horizon? Maybe. But in the end, we may actually just wind up with a 2-page I-9 form (double the fun?), and who knows how long the employer handbook will have to be to cover that!  Form I-9 Stakeholder Engagement_Executive Summary