USCIS recently revealed their proposed changes to the current version of the Form I-9 and are seeking comment on these changes.
These changes include:
- Instruction pages increase from 6 to 15 due to the instructions becoming far more granular and even more specific. Where the brief instructions of prior versions had allowed for some level of leeway in completion of the Form, the new instructions make several more demands for completion and far less use of the word "may".
- "Other Names Used" field is changed to make it clear that what the Form wants is LAST NAME only The employee is required to enter "N/A" if there is no value for this field.
- "Apt Number": The employee is required to enter "N/A" if there is no value for this field.
- "Social Security Number": This is an optional field unless the employer participates in E-Verify, however, unlike the other optional fields, the instructions do not tell the employee what to enter if they choose not to enter a value in this field. The new instructions do specify that, in the event the employee does not yet have their Social Security Number, they are to write"Applied for - In Process" in this field.
- "E-Mail Address" and "Telephone Number": While these fields are still "optional" the employee MUST ( vs. "may" in the current form instructions) write "N/A" in each field they choose not to provide the information.
- The Form contemplates that the employee will enter their information by typing it into the form online ( via the USCIS website) and dropdown lists and cell value validations have been added to help reduce errors. It will be interesting to see how many of these make it through the draft stage into the final product as the DOJ has frowned upon the use of too many aids to influence answers ( or potentially cause incorrect answers if it is too easy to select an incorrect value from a drop down list).
- The instructions make it clear that although data required for the Form may be typed, if using the Form available from the USCIS website, the form must be printed before it is signed by hand. (USCIS does not yet accommodate electronic signature.)
- There are now check boxes that must be completed with regard to how many preparer/translators assisted with the form (even if none where used) - this will be a new field and new opportunity for omissions when no preparer was used. The draft instructions require that a box be checked.
- When entering the employee's name at the top of Page 2 ( Sections 2 and 3 for the Employer) the employer is now instructed that they must write the name EXACTLY as the employee indicated in Section 1.
- There is a new field in Section 2 that correlates to the status the employee selected in Section 1, however a value is ONLY required (according to the new instructions) when completing the Form online via the USCIS website. Otherwise this field may be left blank (no "N/A" is required).
- The abbreviations that may be used for documents reviewed in Section 2 are specifically prescribed in the new tables provided in the new lengthy instructions. The draft instructions contemplate that employers MUST use the abbreviations provided by USCIS. This will be problematic as usually the instructions are not printed out with the form (especially as they will now use 15 pages paper) and some of the abbreviations listed are really too long to enter into the Form in handwriting. Hopefully this proposed change will be eliminated or drastically modified.
We will keep you updated on developments on the new proposed Form I-9 as they occur.
Some background on the current Form I-9: In 2013, USICS unveiled a dramatically changed Form I-9. This, now current, version of the Form included many welcome changes, to include instructions written in plain English (although the number of pages of instruction increased from 3 to 6 and it is debatable to what extent any of those pages of instruction are consulted, during the actual process of Form completion), and the Form I-9 itself was changed from a 1 page form to 2 pages, separating the portion that is completed by the employee and the portion completed by the employer. The new employer page ( Sections 2 and 3) was improved to include expanded spaces to accommodate List A document sets that contained up to 3 separate documents and the placement of certain fields such as the employee start date were rearranged to help reduce mistakes. We have seen a significant decrease in errors in the forms we audit for our clients as a result of this new Form on the employer page. The separation however did lead to some challenges as we saw more errors left in Section 1 (the employee section) as employers focused only on the page they needed to complete and would forget to check the employee's entries. This is problematic as the employer is responsible for the proper completion of Section 1 by the employee. Employer's also often forget to list the employee's name at the top of the Employer Page (Sections 2 and 3) which could have detrimental results should Page 1 become separated from Page 2. These "growing pains" simply demonstrate the learning curve that exists in any new process. Ultimately , the current Form was a dramatic improvement from its predecessors.
The current Form introduced some new concepts though that were surprises to many employers. For example, the new instructions for Section 1 told employees that they must write "N/A" in the "Other names Used" field if they have no information for that field , and they are told they may write "N/A" in the new optional e-mail address and telephone number fields on the form if they choose not to enter a value there. The term "may" is not the same as "must", so this causes some confusion as to whether it is also acceptable to leave these optional fields blank. Another curveball was the E-Verify rule that IF an employee chooses to include their e-mail address on the Form I-9 the employer MUST enter that e-mail address when they create the case in E-Verify.
Based on practical experience, it appears that reductions in errors in the Form has been a function of improvements to the Form ( 2 pages where data is entered) itself, not to improvements in the attached instructions, which, in practice, are not often included or consulted when the Form is being completed. USCIS produced the M-274 Handbook for Employers, which provides excellent instruction for employers although many employers do not know or forget to reference this Handbook for additional guidance. At 15 pages, it might be better instead, to reduce the instruction pages included with the Form and instead rely on the M-274 to provide employer instruction for the process as employers are more likely to review a manual that directs them to the specific sections that covers any questions they have than 15 pages that waste employer resources to print and are just as likely to be disregarded as the current 6 pages and the previous 3 pages included with the Form.
While the requirement of employers to verify employees’ authorization to work in the United states has remained the same over the years, the Form and instructions continue to evolve; sometimes for the better and sometimes for the worse. USCIS continues to attempt to provide more resources and information for employers to assist in this process, however as users and implementers of the Form, we must be careful what we ask for, as the more instruction and specification USCIS provides, the less leeway both employers and auditors have to accommodate the innumerable possible permutations of reasonably correct Form completion that can occur and this makes it more likely that employers ( nd their authorized representatives) will make mistakes with Form completion.