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New I-9 Form Released by USCIS – Time to Get “Smart” on I-9 Compliance

On November 14, 2016 USCIS released a revised version of Form I-9, Employment Eligibility Verification. Employers may continue using the current Form I-9 with a revision date of March 3, 2013 through January 21, 2017, however, effective January 22, 2017, employers must use the new form. [Reminder: Employers must assure a Form I-9 is completed to document identity and work authorization for each new employee (citizen or any status) hired after November 6, 1986. Employees must complete Section 1 no later than their first day of employment and employers must verify their documents (per the Lists of Acceptable Documents attached to the Form.]

The new form, which has been in the works for almost a year, is touted to be a “smart” I-9 because the form contains pop-up informational icons and error-checking capabilities. Presently, the new form is only compatible with Adobe Reader. We’ll explain below some of the features, but it should be emphasized that this is NOT an “electronic” I-9, it still must be printed, physically (and timely, mind you), signed and dated by the employee and the employer representative and retained per the established rules. If an employer is utilizing an electronic version of the I-9, it should assure its vendor is working up a compliant update that will be ready no later than January 22, 2017.

New Bells and Whistles

  • As explained above, most fields have an associated “?” icon, when clicked, will provide summary instructions.

  • The “smart” I-9 precludes the completion of the form if a mandatory field is left blank. The missing information will be highlighted and the page cannot be saved until all the required fields have been completed, and where appropriate, with “N/A.”

  • The Form now enables the completion of multiple preparers and translators, each of whom must complete a separate preparer and/or translator section. If no preparer or translator to assists in completing section 1, the employee must indicate so on a new check box labeled, “I did not use a preparer or translator.”

  • A new “Citizenship/Immigration Status” field at the top of page 2, Section 2, where the employer is expected to select from a pull-down list or write the number corresponding with the citizenship/immigration status selected by the employee in Section 1. (E.g., if the employee attested to being a U.S. citizen, the employer must write the number 1 in this new field).

  • Section 1 has been modified to request that “aliens authorized to work” (box 4) enter EITHER their Alien Registration Number (A-Number)/USCIS Number OR Form I-94 Admission Number OR Foreign Passport Number and Country of Issuance. In the 2013 version of the Form, employees who provide a Form I-94 number must also provide the foreign passport information.

  • Section 2 has a new dedicated area to enter additional information. This will alleviate the current practice of cramming notes on the margins of the form where employers are required to notate in relation to unique work-authorization scenarios such as TPS extensions, OPT STEM extensions, H-1B portability, etc.

  • Section 3, for reverification, is rolled onto a 3rd page and the employer must now complete the Last Name, First Name and Middle Initial fields as the Employee provided in Section 1.

  • Also in Section 3, the instructions now state that if an employee who is being reverified or rehired has also changed his or her name since originally completing Section 1, the employer is only to enter the part of the name that has changed.

  • When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

The Legal Stuff and Cautions

  • The Spanish version, which does not include any smart features, can only be used by employers and employees in Puerto Rico. However, this version can be provided as a tool to assist a US employee completing the English version.

  • The new, three-page Form I-9 Instructions are now separated from the form and expanded from 9 to 15 pages. For more in-depth information relating to I-9 completion, employers should consult the 66 page M-274 Handbook for Employers.  USCIS is currently updating this publication to conform to the new Form.

  • All of the signature “date” fields (in sections 1, 2, and 3) have been changed to “Today’s Date. As the instructions emphasize, employees and employers should never  “backdate this field.”

This new, “smart” I-9 will hopefully provide employers with additional guidance (and motivation) to timely and correctly complete the I-9.  Recall that on August 1, 2016, USCIS announced significantly higher fines for I-9 paperwork violations. Fines increased by as much as 96% — the prior range of $110 to $1100 jumped $216 to $2156 per I-9. In the event of an audit, minor errors on the I-9 will add up quickly.

Oh yeah, we should mention that the US just had an election and we’re getting a new President and Congress next year. Not to the state the obvious, but significant changes to immigration-related policy and laws are on the horizon. In the coming weeks we will be blogging about the impact of the election on the Obama Executive Action initiatives and we will analyze the likely changes employers should expect under a Trump administration with regard to immigration and related-compliance.

© Copyright 2020 Squire Patton Boggs (US) LLP

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About this Author

Gregory Wald, Immigration Attorney, Squire Patton Boggs Law Firm
Shareholder

Gregory Wald’s experience includes representing multinational and Fortune 500 companies and individual clients in all aspects of immigration law including nonimmigrant visas, and immigrant matters regarding multinational executives and managers, individuals of extraordinary ability and professionals.

He has appeared before the US Department of Homeland Security (DHS), US Department of Labor, US Department of Justice Executive Office for Immigration Review and various federal courts.

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