November 14, 2016

Employers Required to Use Newly Released Form I-9 Starting January 22, 2017

A week ahead of schedule, U.S. Citizenship and Immigration Services (USCIS) released the new version of the Form I-9 today. Employers will be required to use the new version starting January 22, 2017, and using earlier versions of the form will not be acceptable after that date.

The Form I-9 is a document that employers must complete to verify the identity and employment authorization of every new hire (both citizens and noncitizens), hired after November 6, 1986, to work in the United States. Employers are liable for all errors on the form (even errors made by the employee in completing Section 1), and employers must retain I-9s for inspection for a certain period of time after an employee leaves the company (either one year after the date of termination or three years after the hire date, whichever date is later).

Employers may continue to complete the new version of the I-9 entirely on paper or have Sections 1 and 2 completed on a computer, or any combination thereof. Regulations pertaining to electronic I-9s remain in place, and employers working with outside vendors on electronic I-9 completion or storage systems should work quickly to ensure that their systems are compliant with this new form by January 22.

Changes to Form

The new form has some significant changes as compared to the most recent version of the Form I-9 (released on March 8, 2013). Most notably, the new I-9 is a “smart” fillable .pdf that has the following features:

  • If the form is completed on a computer connected to the internet, the “Instructions” button at the top of the form will open a separate .pdf that includes the I-9 instructions. No longer are the instructions part of the I-9 itself.
  • There is a “Start Over” button at the top of the form that will clear all completed fields. A warning screen pops up that requires agreement before clearing out data.
  • There is a “Print” button at the top of the form that will open a print dialogue box.
  • The text fields on the form do not allow numerical values to be entered. For example, you could not accidentally type “123 Main Street” in the “Last Name” field.
  • The new form clarifies that it is only seeking any other last names used. The current version of the I-9 does not specify last names, and employees often wrote nicknames or other first name variants in that space.
  • The numerical fields on the form do not allow text to be entered into those fields. Date fields will require dates to be entered in mm/dd/yyyy format, and Social Security numbers and telephone numbers are automatically formatted (i.e., XXX-XX-XXXX, (XXX) XXX-XXXX).
  • If an employee enters an email address in Section 1, the form will require that the address be entered in the correct format (i.e., example@domain.com).
  • Each field — whether text, numerical or a checkbox — has a small “?” button that, when clicked, opens on-screen instructions specific to that field.
  • When certain information is entered or certain boxes are checked, the inapplicable fields are automatically populated with “N/A.” Nearly every field must have an entry, so if it is inapplicable, “N/A” must be entered. See below for an example related to the citizenship selection, and note that each “N/A” in the fields has been autopopulated:

    Click to enlarge.
  • If an Alien Registration number is entered in Section 1, a drop-down menu appears next to the number so that the employee must choose “USCIS Number” or “Alien Number.”
  • Signature fields and the date fields for signature dates are NOT fillable. This is to remind employers and employees that even though the I-9 can be completed by typing information into each field, the form must still be printed out and signed and dated in its hard copy version.
  • The form allows you to indicate whether a preparer/translator was used in preparing the form. If a preparer or translator was used, the form requests information on how many individuals assisted in the preparation of the form and then creates Preparer and/or Translator Certifications for that number of individuals (this will push the form to more than two pages).
  • There is a “Click to Finish” button at the end of Section 1, Section 2 and Section 3. A pop-up screen indicates that the form will check to make sure each field is completed in that section. Clicking “Yes” leads to new pop-up screens for every blank or improperly completed field, and the blank or improperly completed field becomes red-shaded, as shown:

    Click to enlarge.
  • Once all fields are properly completed and the form has completed its self-check, a pop-up screen directs the user to print that section and sign and date in the appropriate fields. For employees completing Section 1, the pop-up indicates that the employer is now required to complete Section 2. You must click “OK” to proceed, and the bottom of the form updates to say “Please print to sign and date this section” in green font.
  • For Section 2, the employee information from Section 1 is automatically populated at the top of Section 2, including employee last name, first name, middle initial and citizenship/immigration status.
  • Similarly, the drop-down fields for Document Title in List A, List B and List C are dependent on the citizenship box checked in Section 1. For example, if an employee indicates that he or she is a permanent resident, the employer would be unable to select “U.S. Passport” as a List A document as that would be inconsistent with the citizenship box marked in Section 1.
  • There are drop-down menus in each column for List A, List B and C.
  • If a List A document is entered, the Issuing Authority autopopulates depending on the document title chosen from the drop-down list.
  • If an expiration date earlier than today’s date is entered, a pop-up screen appears, reminding you that you cannot enter an expired document.
  • If a List A document is entered, “N/A” appears in all the fields underneath List B and List C.
  • Similarly, if a List B or List C document is entered, “N/A” appears in all fields underneath List A.
  • There is NOT smart technology forcing a full nine-digit Social Security number to be entered in the Document Number for List C if “Social Security Card (Unrestricted)” is chosen form the Document Title drop-down menu.
  • There is a new freeform field called “Additional Information” on the I-9 that allows for certain notes to be made about a particular employee’s situation and can include anything from notes about a current F-1 OPT status, termination dates, reverification notes, etc.

Changes to Instructions

In addition to the extensive features added to each field, the new version of the Form I-9 has a separate 15-page instructions document. The March 8, 2013, version of the I-9 consolidates the instructions and the Form I-9 itself, covering six pages of instruction in addition to the two-page I-9 itself and the List of Acceptable Documents.

The new instructions are significantly different than the previous I-9 instructions, going into greater detail about the information that should be entered into each field and how to use the drop-down menus and question mark guides. Without addressing every single change, a few highlights include:

  • A reminder to employers that the employee must be allowed to choose the documents to present from List A or from List B and List C.
  • Notices to employers that they may be fined for improperly completed forms and that Section 1 is the employee’s responsibility and Section 2 is the employer’s responsibility.
  • Instructions regarding use of the question mark symbol in each field and accessing instructions.
  • Reminder that Form I-9s accessed from the USCIS website and completed on a computer are not considered electronic I-9s and therefore cannot be electronically signed.
  • Reminder to enter “N/A” in all inapplicable fields.
  • Specific instructions to Canada and Mexico border commuters who live outside the U.S. in completing the address fields.
  • A reminder that falsely attesting to U.S. citizenship may subject employees to penalties or removal proceedings, and may adversely affect the employee’s ability to seek future immigration benefits.
  • A reminder not to back-date any signature date fields.
  • Tables showing suggested acceptable abbreviations to List A, List B and List C documents, although making it clear that “any other common abbreviations” may be used instead.
  • A list of suggested information that could be included in the “Additional Information” field.

Next Steps for Employers

Given the significant changes to Form I-9 in this most recent version, employers should conduct new training sessions with the teams responsible for completing I-9s on behalf of the company to ensure consistency. ICE audits of I-9s remain common, and any errors in I-9 completion can lead to fines for employers.

We anticipate there will be further guidance given by the government on the new I-9 form in advance of the January 22 effective date. We plan to issue further updates in the coming weeks with relevant takeaways for employers.

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