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Practice Advisory: Highlights of the New I-9

23:47 06 December in News Updates
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Highlights of the New I-9 Employment Eligibility Verification Form


When must an employer begin using the new I-9 Form?

The new version of the Form I-9 (Revision date 11/14/2016 N) is effective for use immediately.   Employers may continue using the current version of Form I-9 (Revision date 03/08/2013 N) until Jan. 21, 2017. Use of the new version will be mandatory as of January 22, 2017.  The new form bears an expiration date of 8/31/2019.

Where can I get the new Form I-9?

The new form is available at https://www.uscis.gov/i-9.  The site includes the smart / fillable version of Form I-9; non-fillable “flat” version; Spanish version – for use in Puerto Rico only, or for reference only; Instructions in English and Spanish; the List of Acceptable Documents; and the M-274 (current version, Rev. 4/30/13).

Will USCIS be updating the M-274, Handbook for Employers, Guidance for Completing Form I-9?

Per USCIS, an updated version of the M-274 reflecting the changes in the 11/14/16 version of the I-9 should be issued no later than 1/22/17.  The existing version of the M-274 bears a revision date of 4/30/13:   https://www.uscis.gov/sites/default/files/files/form/m-274.pdf

What are the main changes in the new I-9 Form?

General

The instructions are now 16 pages long, instead of 7.  The instructions for Section 1 are now 4.5 pages – more informative, but makes it less likely the user will actually read everything

The I-9 form itself is still only 2 pages long.  It looks longer when viewed on a computer, but still prints out as 2 pages, unless supplements for a preparer/ translator are included

The form now has a supplemental page for use by preparers and translators, and provides room for up to 4 of them

The instructions now clarify that while the employee must be given the full Instructions (both the employer and employee sections) and the List of Acceptable Documents, the employer does not need to print and retain these pages

Features of the smart form version

Hyperlinks on the form take the user to the relevant section of the instructions

When the user submits “Click to Finish,” the system will alert if mandatory fields are left blank

The form will generate a QR code

The form will auto-populate certain fields with “N/A” in response to certain selections in prior fields.  This is useful to avoid a technical violation for failure to complete a field. 

There is a “Start Over” button which will clear all fields on the form

Section 1

The instructions now clarify that people with only one name (as opposed to given name + surname) should enter that name in the surname field, and “unknown” in the first/ given name field

The field formerly titled “Other Names Used”  is now “Other Last Names Used”.  If not applicable, the employee must enter “N/A” or the form will not print.

The employee is no longer required to provide a physical residential address; use of a P.O. box is no longer expressly prohibited.  However, USCIS guidance on “I-9 Central” still lists that prohibition; this is pending correction.

Note, however, that in Section 2 the employer is still prohibited from using a P.O. Box for its address.

An apartment number or “N/A” must be listed for the form to print.

The employee’s provision of an e-mail and telephone number is still optional. However, if the employee elects not to provide that information, “N/A” must be entered.

The instructions now specify that provision of an SSN is not required unless the employer is enrolled in E-Verify.  For employers which use E-Verify, there is guidance for those who have applied for an SSN but have not yet received the number.

In the citizenship/ status fields, once a box is checked the other boxes will automatically populate as N/A

The section for “Aliens authorized to work” now requires that only 1 of the 3 options be selected; the prior version of the form required the I-94 admission document number regardless of which option was selected.  This is an important change because it provides an option for employees experiencing a delay in the accessibility of electronic I-94 records issued by U.S. Customs and Border Protection.

The date field is now listed as “Today’s Date” to try to avoid the common error of entering one’s birth date

It is now mandatory to check the field regarding whether a Preparer and/or Translator was used.

The employee section of the instructions now include details regarding List A, B and C documents, as well as information about acceptable receipts

Section 2

The smart form now automatically populates the Employee Name at the top of page 2; this is useful as it was a common oversight in form completion

Employers must now indicate the employee’s citizenship status at the top of page 2. Employers will be required to enter a number which corresponds to the status the employee selected in Section 1 (U.S. citizen = 1; noncitizen national = 2; lawful permanent resident = 3; alien authorized to work = 4).  The available options for Section 2 completion will change based on the attestation.

The smart form eliminates the potential for an over-documentation error, because if for example the employer enters a document in List A, the form will automatically enter “N/A” in the fields for Lists B and C.

The instructions now list some acceptable abbreviations for Section 2 documents, although the abbreviations are not very short, and alternatives may still be acceptable

An “Employment Authorization Document issued by DHS” is now included in List C

Receipts for the application to replace a lost, stolen or damaged SSN card, U.S. birth certificate, Native American Tribal Document, or EAD  are now specifically included in List C

There is now an “Additional Information” field for items which employers previously had to write in the margins of the form, such as E-Verify case numbers, OPT STEM extension information; Nonimmigrant 240-day extensions; employee termination dates and purge dates.  Note, however, that this field does NOT impose a new requirement that employers include the termination and/or I-9 retention dates on the form.

Anything an employer should watch for?

Note that the smart/fillable version of the form is NOT an electronic I-9.  There are two versions of the new I-9.  One is a smart form (can be downloaded and filled in on a computer); the other is “flat” regular format version.  Both versions must be printed on paper and signed with a wet signature unless the employer also uses an electronic I-9 system.

The smart form will not alert for timeliness or errors in document numbers and some document titles; it will not provide alerts when reverifications are due.   These are features which many electronic I-9 systems offer.

    • A compliant electronic I-9 system can provide efficiencies and help prevent errors.  However, there are very specific regulations relating to electronic I-9 systems, which include requirements for audit trails and technical security features.  Not all systems are compliant.  ICE is increasingly focused on whether electronic I-9 systems are compliant.  LAC does not endorse any particular electronic I-9 vendor.  However, if you would like assistance in vetting I-9 vendors for regulatory compliance, we would be glad to assist you in this process.

The Instructions are no longer part of the form, but the employer is still required to provide the employee with the Instructions and the List of Acceptable Documents together with the I-9.   The List of Acceptable Documents is now attached to the I-9 Form rather than to the Instructions.

USCIS advises downloading the new version of smart form if employers downloaded it when it first became available in November.  When the form was first issued, there was a glitch which was causing digits in Social Security Numbers to be transposed.

The smart form requires the latest version of Adobe Reader, available at no cost here: Adobe Reader.  USCIS suggests that you download the PDF directly to your computer.  Internet Explorer, Firefox and Safari web browsers will prompt you to open or save the form.

Note that there have been some compatibility issues when using the Google Chrome browser.  Instructions are available here: https://www.uscis.gov/i-9-central/whats-new

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