Employers should get to know the new Form I-9 before it takes effect in January

On November 14, 2016, the U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification.    All U.S. employers must begin using the new version by January 22, 2017.   The new Form I-9 is now available in paper version here: https://www.uscis.gov/system/files_force/files/form/i-9-paper-version.pdf?download=1 and in a fillable, editable  PDF form here: https://www.uscis.gov/system/files_force/files/form/i-9.pdf?download=1

In this latest version, the I-9 has transformed to a three-page form. The instructions on how to complete the new form can be found here – there are 15 pages!  While the instructions need not be filed with the completed Form I-9, an employer is required to ensure that all pages of the instructions as well as the Lists of Acceptable Documents (page 3 of the 2017 version) are available either in print or electronically to all employees who are completing the Form I-9.

While employers may immediately begin using this new Form I-9 in their new hire process, commentators are suggesting caution in moving too fast. There appear to be some bugs and procedures which need to be addressed.  For example, employers using the fillable PDF will need to address how to have employees access and complete Part 1 of the form.  

The new editable I-9 contains changes aimed at reducing technical errors and making it easier to complete.  For example, virtually every field on the form has a question mark symbol.  By clicking on the symbol, you are taken to the instructions for the question in that field.  And to ensure that information is entered properly, the form includes features such as drop-down answer menus and answer validations.   

Employers need to be clear that while the 2017 editable PDF Form I-9 is completed on a computer, it is not considered an electronic form by USCIS.  Once completed, the I-9 must be printed, and signed on Page 1 by the employee (and translator if applicable), and on Page 2 by the employer.  The completed and signed form is to be saved consistent with the approved storage of paper copies of the prior Form I-9s.

Other changes to the 2017 Form I-9 include:

• In addition to the enhancements mentioned above, there is easy electronic access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.
• The “Other Names Used” field in Section 1 has been replaced with “Other Last Names Used” in order to avoid possible discrimination issues and privacy issues.  For example, an individual may have changed their first name for transgender reasons.
• Section 1 was modified to require certain foreign national employees to enter either their Form I-94 number or foreign passport information. Previously, both were requested.
• An employee who does not use a preparer or translator to assist in completing the form must now affirmatively indicate that on a new check box.   For those who check the box stating that a preparer and/or translator were used, the form now allows the noting of multiple preparers and translators, each of whom must complete a separate preparer/translator section.  The supplemental forms are available here: https://www.uscis.gov/system/files_force/files/form/i-9supinstr.pdf?download=1
• USCIS has added a new “Citizenship/Immigration Status” field in Section 2, where the employer is required to write the number corresponding with the citizenship/immigration status selected by the employee in Section 1.
• Section 2 has a new dedicated area to enter additional information that employers are currently required to notate in the margins of the form (such as Temporary Protected Status extensions, Optional Practical Training for STEM student extensions, H-1B portability, etc.).

It does not pay to let this slide: an employer who fails to properly prepare, retain, or produce I-9’s faces a minimum penalty of $110 and a maximum penalty of $1100 for each employee who should have completed the form.  

Here are steps you should take to be ready on January 22:

• All old forms in your new hire packet should be replaced with the new Form I-9, or you should have a procedure in place for the employee and you to complete the editable PDF Form I-9. 

• All individuals hired on or after January 22, 2017 must use the new I-9.   

• Although workers hired before January 22 may use the previous form, dated 03/08/13, there is no reason not to begin using the new form immediately.

• Make sure the persons in your business who assist employees with completing I-9’s read the 15-page instructions and practice by filling out samples.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Mike Staebell