Are You Using the Correct Form I-9?

by Morgan Lewis

Use of the new form is mandatory starting May 7, 2013.

As we reported earlier, on March 8, the U.S. Citizenship and Immigration Services (USCIS) announced a newly revised Employment Eligibility Verification form, Form I-9, which employers are required to use to verify the identity and employment authorization of newly hired employees.[1] Employers must use the new Form I-9 immediately. Use of prior versions of the Form I-9 is no longer permitted. The Federal Register announcement from March 8, 2013, details these new requirements.[2]

Where Can I Find the New Form?

The new form can be downloaded here.

The newly updated M-274 Handbook for Employers from USCIS is available here.

What Are the Changes to the Form I-9?

The key revisions to the Form I-9 include the following:

  • Expanding the Form I-9 to two pages
  • Adding additional data fields, including fields for an employee's foreign passport information (if applicable) and telephone number and email address (optional)
  • Expanding the form's instructions

Are There Other Changes or Best Practices for the New Form?

  • Employees must receive the full set of instructions, for both the employee and employer portions, when completing the Form I-9. USCIS confirmed that employers may not restate or reformat the Form I-9 instructions, but they may laminate the official Form I-9 instructions for distribution to new employees.
  • A printed electronic Form I-94 record may be accepted in lieu of an original Form I-94. Implementation of the new Form I-9 coincides with an announcement by U.S. Customs and Border Protection (CBP) that it is converting to an electronic Form I-94 and doing away with the paper version. Employers will need to be familiar with the new electronic Form I-94 record.[3]
  • There are two new optional fields in section 1 of Form I-9 for an employee's telephone number and email address. Although the form does not state so, the instructions confirm that these fields are optional. A best practice is to ensure that "N/A" is used in all fields where there is no applicable information in both sections 1 and 2. Note that if the employee has no other names, he or she must record "N/A" in the corresponding field.
  • Use the new Form I-9 for all reverifications. If an employee presented documents at the time of hire that are expiring and need to be reverified, the employer may not use section 3 of an outdated form to record the reverification of the updated documents. Employers must use section 3 of a valid Form I-9 to record all reverifications of expiring employment authorization.
  • Employers may no longer pre-fill section 1 of Form I-9. Though not directly related to the rollout of the new Form I-9, U.S. Immigration and Customs Enforcement (ICE) recently stated that employers may no longer pre-fill parts of section 1 of Form I-9. Previously, employers were permitted to do so provided that they also completed the "preparer/translator" section. This is a particular issue for employers who use electronic Form I-9 systems that are linked to electronic payroll or on-boarding platforms.

How Can Morgan Lewis Help?

Employers should conduct a review of their immigration compliance protocols to manage the risk associated with immigration compliance requirements and to ensure that they have an effective immigration compliance program in place. It may be desirable to perform this review under the protection of attorney-client privilege. Morgan Lewis can assist in this effort with a comprehensive approach to immigration compliance that includes assistance with Form I-9 self-audits, E-Verify counseling, development of internal policies and handbooks, and training. We also represent employers who are facing government investigations and charges in connection with immigration compliance.


For more information, or if you have any questions regarding the issues discussed in this Immigration Alert, please contact any of the following attorneys:

Washington, D.C.
San Francisco

[1]. For more information, view our March 8, 2013, Immigration Alert, "U.S. Employers Face New Form I-9 Requirements," available here.

[2]. View the announcement here.

[3]. For more information on the Form I-94 requirements, view our March 26, 2013, Immigration Alert, "CBP Announces Rule Implementing Paperless Form I-94," available here, and our April 9, 2013, Immigration Alert, "CBP Announces Implementation Schedule for Paperless Form I-94," available at here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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