New Form I-9

USCIS has released a new version of Form I-9, https://www.uscis.gov/i-9-central/whats-new. This new version of the form can be used now, or employers can continue using Form I-9 with a revision date of 11/14/16 for the next couple of months. 

Starting on September 18, 2017, the new version of the form (which contains a revision date of 07/17/17 N) will be mandatory. This means employers must start using the new version of Form I-9 for employees hired on or after September 18. Employers are not required to go back and replace any forms completed for employees hired prior to that date.

The new form contains just a few changes, outlined below. Although the changes are minor, it is critical that employers start using the new version on or before September 18, as failure to use the correct form version can result in significant fines.

• The List of Acceptable Documents was changed to:
  • Add the Consular Report of Birth Abroad (Form FS-240) to List C. 
  • Combine all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection C#2 in List C.
  • Renumber the List C documents.
• The  Form I-9 instructions were revised to:
  • Change the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • Remove “the end of” from the phrase “the first day of employment,” which makes the language consistent with the regulation.
• These changes are also reflected in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

New Form I-9 - Smart Enhancements

U.S. Citizenship and Immigration Services (USCIS) published a revised Form I-9 that will be mandatory starting January 22, 2017, available at https://www.uscis.gov/i-9. While changes to the form itself were minor, the most significant development is the availability of a "Smart" Form I-9 that is designed to reduce paperwork errors that can lead to costly fines for employers. This is particularly important given that USCIS increased monetary fines for I-9 violations earlier this year, more than doubling the fines that can be imposed for paperwork errors. Employers can also still print Form I-9 and fill it out by hand.

For employers that use the online Smart Form I-9, they must also print the form once complete, have it signed by both the employee and employer, and then retain the original, signed form. This online version of the form does not provide for electronic signature, electronic storage, or electronic connection to E-Verify. However, the online Smart Form I-9 still has a number of benefits:

• It adds help prompts for each field on the form, as well as a link to the full instructions online
• Certain fields validate the number of digits, such as date fields and the Social Security Number field
• There are drop-down lists for state names and citizenship/immigration status
• There is a mechanism to check the form once finished to ensure all fields are completed
  • But keep in mind this only ensures the fields are completed, not that the information is correct
• Certain repetitive fields are pre-populated (employee name and citizenship/immigration status)

Changes made to both the paper and online versions of the new Form I-9 include:

• Section 1 now specifies that only other "last names" used are required, rather than any other name used
• Foreign nationals have less data to enter in certain circumstances
• A new checkbox is required to indicate whether or not a preparer or translator was used
• The employee's citizenship/immigration status must now be entered at the top of Section 2
• A box is provided in Section 2 for entering additional information, when needed

It is imperative that employers use the current version of Form I-9 when they hire a new employee. The Smart Form I-9 now provides enhancements to ensure the form is completed correctly, providing employers an additional layer of protection in the process. However, these enhancements cannot take the place of proper training. The Form I-9 comes with 15 pages of instructions and a 60+ page handbook -- it is certainly not as simple as it seems. Employers should take advantage of the resources available at I-9 Central, https://www.uscis.gov/i-9-central, and consult with counsel to ensure they understand how to complete the form and have proper compliance procedures in place.