The New Form I-9 and instructions have been released by United States Citizenship and Immigration Services ("USCIS"). Employers have until January 22, 2017 to incorporate this new Form I-9 into their onboarding processes. While employers may use the new Form I-9 released today (November 14, 2016) immediately, the previous Form I-9 (dated 03/08/2013 N) may continue to be used to verify the employment authorization of new hires and to reverify expiring employment authorization through January 21, 2017. The release of a new Form I-9 by USCIS does not require that any changes be made to the Form I-9 records of an employer's existing employees.
As we previously indicated when the proposed Form I-9 was released for comment over a year ago, we knew the new Form I-9 would include additional instructions as well as additional completion pages. The new Form I-9 is also a "smart form" which, when completed online, includes helpful dropdown boxes, explanations, validations and automatically fills in the employee information at the top of Section 2/Page 2 (a common omission when the previous Form was released) and autofills "n/a" into fields that do not apply based upon other information entered into the form. This functionality currently requires Abode Acrobat 8 or higher, so some users may find themselves in need of an update.
New Features/Requirements of the New Form I-9: The Highlights
Some features and requirements of the new Form also present new challenges for proper completion as they include required fields that are easily overlooked:
- Preparer/Translator check box in Section 1: A check box has been added to Section 1 for the employee to indicate if a Preparer/Translator is OR IS NOT used. A selection must be made here. USCIS has provided an additional page for use when more than one preparer/translator is involved with completion of the Form. While the employee is responsible for completion of Section 1 and only the employee or the preparer/translator may make changes in Section 1, it is the employer's responsibility to ensure that the entire Form I-9 is complete and correct so employers must check this page carefully.
- Citizenship/Immigration Status at the top of Section 2: When the previous version (03/08/2013 N) of the Form I-9 was released, separating Section 1 from Sections 2 and 3 onto separate pages, employer's often missed the new fields added to the top of Page 2 which require that the employee name be added at the top. The new Form I-9, released 11/14/2016, added one more required piece of information in this area: the number corresponding to the citizenship/immigration status that the employee selected in Section 1/Page 1. When completed online, the Section 2 of the new form will automatically populate with the employee name and citizenship/immigration status information from Section1 /Page 1. However, if an employer is completing the Form I-9 in hard-copy version - they will need to remember this new field.
- Document Title Abbreviation Guidance: The instruction for the new Form I-9 includes specific guidance on how to abbreviate the titles of the documents provided to prove identity and/or work authorization. It is important to note that the instructions must be made available to the employee when they are completing the Form I-9 and employers who are not completing Page 2 online may wish to have the instructions handy as well to ensure that they properly abbreviate the document title now that this has been specified.
- Additional Information Area: Finally, some space has been reserved within the Form I-9 or all those notes that had previously been relegated to the margins, such as updates to employment authorization extensions for beneficiaries of Temporary Protected Status, or F-1 Visa Cap Gap, or other non-immigrant visa categories in cases where the existing Employment Authorization Document, which has otherwise expired on its face, is automatically extended. This is also an area where E-Verify case numbers and other notes may be kept.
- Signature of Authorized Representative: Employers of remote employees often struggle to meet the requirement that the original documents of an employee be reviewed by the employer (or their authorized representative) in the employee's physical presence. U.S. Immigration and Customs Enforcement has always taken the position that the person who reviews the employee's documents must be the same person who signs Section 2 of the Form I-9 as the Employer/ Authorized Representative. A recent OCAHO decision had determined that the previous Form I-9, and accompanying instructions, did not properly specify that the person who signed Section 2 as the employer/authorized representative actually needed to be the same person who reviewed the original documents presented by the employee in the employee's physical presence. For employers with remote employees, this decision presented a possibility of some welcome flexibility when onboarding employees who did not work in areas where other employees are present. However, the Form I-9 released 11/14/2016 clarifies the government's position on this and includes specific instruction that "The person who physically examines the employee's original documents and completes Section 2 must sign his or her name in this field". This underscores the continued challenge that employers of remote employees face to ensure that they have a workable plan in place to ensure that an authorized representative can physically review the original documents presented by the employee to prove identity and work authorization and complete Section 2 on their behalf in a timely manner.
- Separate Page (Online) for Reverifications (Section 3): While this section still prints on page 2 of the Form I-9 along with Section 2, another welcome change to the Form I-9 is the separation of expiring employment authorization documents to its own page online. This change should help to keep records cleaner as well as facilitate use of the most current Form I-9 online for reverifications.