New Form I-9: What Does This Mean for Employers

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Form I-9 has undergone numerous changes since its inception following the passage of the Immigration Reform and Control Act of 1986 (IRCA). The newest version of Form I-9 was published by the United States Citizenship and Immigration Services (USCIS) on November 14, 2016. Employers may continue using the prior I-9 version dated 03/18/2013 until January 21, 2017, but then only the new version may be used. Employers can begin using the new version now.
The new form is a "smart" pdf format which is designed to reduce errors and provide guidance to employees and employers while completing the form. However, some of the new features raise important questions which employers should be aware of and should analyze thoroughly as they implement use of the new form. With the Trump administration's promises of tighter immigration controls and employer accountability, understanding the new Form I-9 and ensuring complete compliance is crucial.
In order to use the smart version of the new Form I-9, employers will need to download the latest version of Adobe Reader. The paper version is available for download, but does not include the smart features. Employers can choose to use the paper version, smart version, or a combination of the forms. Some of the enhanced features on the smart form include: auto-completed fields based on employee/employer selections; drop-down lists with answer-specific choices; calendars for date population; a direct link to the instructions on each page; and an error check option at the bottom of each page. Becoming familiar with the new features should help employers more easily comply with the form requirements and minimize future penalties.
Details: What's New on the Form I-9
QR Code
  • Generated on the smart form for use by employers. Use of the QR code is not required, but it can be helpful for record retention and tracking purposes. If using a combination of paper and the smart version, the employer will want to make sure the QR codes on each page match if the forms are stored electronically using this feature.
Dating the Form
  • All sections where a signature is required have been amended to read, "Today's Date," rather than "Date." It is important to always current date the form, both at the time of signing and/or at the time of correction. 
Signing the Form
  • Signatures on both the smart and paper versions must be original, and the form itself does not adhere to electronic signature requirements.
Section 1
  • Amended to read, "Other last names used," rather than "other names used." Nicknames are not required on the Form I-9. 
  • The smart version asks lawful permanent residents (box 3) and aliens with temporary work authorization (box 4) to select "Alien" or "USCIS" to distinguish the type of Registration Number (Alien# or USCIS#) assigned to them. This is not prompted on the paper version, but can be written, if applicable. 
  • There is a new box selection for using a preparer/translator. On the smart version, if the box indicating the use of a preparer/translator is selected, the form will automatically display an additional field for indicating how many preparer/translators were used. If more than one preparer/translator was used, more certification pages will appear automatically. A separate paper version for additional preparer/translator certifications is available where there is no access to the smart version. 
Section 2
  • Employee's name automatically populates at the top of page 2 when the employee completes Section 1 of the smart version. Employers using the paper version are reminded to complete these boxes when completing Section 2.
  • The smart version will enable the List A, B, and C drop-down options based on the employee's box selection in Section 1. Then, when the employer enters the presented document(s) in List A, or Lists B and C, the fields that should no longer be completed will auto-populate with "N/A." For example:
o A U.S. Citizen gives her passport as a List A document. The employer selects U.S. Passport from the drop-down box; all fields in Lists B and C will show "N/A." 
o The employer selects the appropriate Document Title based on the document presented; the drop-down options will appear as appropriate to the document type.
This feature should help eliminate errors, but also calls into question the purpose of the document review process since the employer is limited to a given selection.
Employers can use the "Additional Information" box to record important dates (hire, rehire, termination, etc.), expiration dates for certain auto-extended documents, and note other comments as needed. Employers should take caution when adding information to the I-9 and should consult with legal counsel when deciding what is appropriate to include on the form.

Conclusion

The revisions to the Form I-9, including the newly enabled "smart" functionality, should aid employers in improved compliance and understanding of the I-9. Employers are cautioned, however, that the smart version of the new form does not comply with the regulatory guidelines for electronic I-9 completion and storage, and the form does not provide an electronic signature feature. If an employer wishes to implement a compliant electronic I-9 system, the vendor should be carefully vetted with the assistance of experienced immigration counsel. Employers are encouraged to contact their legal counsel with any questions or concerns about the new Form I-9 implementation process.

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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