Form I-9; here’s what’s new.
Use by January 22.
An extra page, a blank or two.
And by the way, the instructions grew.
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At long last, the new revision of Form I-9 is here. Though the previous revision of the form can still be used for employment verification through January 21, 2017, there’s no time like the present to familiarize yourself with the new version.
The most prominent changes to the new form are its “smart” features, which we’ll discuss further below. Yet there are a few other subtle, yet important details of note:
- When you first open the digital “smart” form, it will appear to have expanded to 3 pages, with Section 3 for rehires and reverification now appearing on its own page. Presumably this is to reduce confusion during initial completion of the I-9, since Section 3 would typically not be needed at that time. However, once printed, the form condenses back to a 2-page document for ease of recordkeeping.
- Just as the form has expanded, so have the instructions (to 15 pages). Of additional significance, here, is the fact that the instructions are now in a separate document from the form itself. This is important because employers are required to make a copy of the instructions available to employees during completion of Section 1 of the I-9. Fortunately, the instructions can simply be made available electronically, but if you provide I-9s solely in paper format, you’ll need to be sure to include the instructions, too.
- A few of the individual fields on the form have changed to help eliminate confusion. For example, date fields have been changed to read “Today’s Date.” This change helps highlight the fact that I-9s should never be backdated.
- Section 2 of the form now includes a block for “Additional Information,” which employers may use to record termination and document retention dates, E-Verify notes, post-audit comments and corrections, and any of those other details that were previously crammed in the margins or on separate pages.
With Great Power Comes Great Responsibility
We hope you won’t be seeing ICE
But just in case, check your forms twice.
If your form’s wrong, you know the game.
The employer shoulders all the blame.
Despite its apparent simplicity, the I-9 has long been a compliance nightmare for employers. Let’s consider the facts:
- The I-9 requires input from both employees and employers, which introduces twice the opportunity for error.
- The window for compliant completion—all during that hectic first week of work—is very narrow.
- The completed form isn’t submitted to the government for review and feedback, which means errors and mistakes can not only go unnoticed, but can continue happening on new forms for years to come.
- The reference material is lengthy.
- It can be easy to overlook some of the requirements—including the signature and date—on the form.
- If audited by Immigration and Customs Enforcement (ICE), even minor mistakes can add up quickly. After recent increases in August, fines can range from $216 to $2156 per I-9.
The new I-9 addresses a few of these issues via its “smart” form format.
For example, if a required field is left blank, the new I-9 will alert the employer of the missing data and will prevent the form from being saved. The form also includes drop-down menus, tooltips providing help and guidance on individual fields, and smart filters that will autofill or remove options that don’t correspond with the details provided by the employee in Section 1.
However, this does not mean employers can rely on the form to do all the work for them. The duty of proper I-9 completion still rests entirely with the employer. This means that if the wrong verification document is accidentally selected from one of the drop-down menus, the employer cannot blame the error on the form. So it is still essential to double-check all data entered for accuracy and completeness.
It’s A Smart Form, But It’s Not an Electronic Form
When you use the new I-9,
Don’t forget to print and sign.
It’s smart, but you’ll still need a pen
Until it is revised again.
The integrated “smart” features of the new I-9 encourage employers and employees to fill out the form in its digital PDF format. Yet, the form is still not an “electronic” form per government standards. This means that, in spite of the form’s numerous improvements, the United States Citizenship and Immigration Services (USCIS) version is still not equipped to be completed entirely in digital/electronic format.
The problem is that this new form can’t be signed.
Specifically, for an I-9 to be completed electronically, the attestations must be made using a compliant electronic signature protocol. This electronic signature method must:
- Require the person signing to acknowledge that he or she read the attestation;
- At the time of the transaction, attach the electronic signature to (or associate it with) a completed Form I-9; and
- Create and preserve a record verifying the identity of the persons signing the form, then provide a printed confirmation of the transaction. (8 CFR 274a.2(h)).
The new Form I-9 (as provided by USCIS) does not comply with these requirements.
Employers wishing to move to a fully electronic I-9 process generally must use a third-party vendor to meet these requirements. Those currently using such a vendor or service may continue to do so, but will need to ensure that the service provider updates its forms to a compliant version of the new I-9 by January 22, 2017.
Otherwise, employers and employees may (and are encouraged to) fill out the new I-9 via the digital form, but when it comes time to sign the form, the otherwise completed form will then still need to be printed and signed manually.
Once signed, this physical copy may then be scanned and stored digitally. If scanned and stored according to applicable electronic retention standards, then this electronic version of the form will fulfill I-9 retention requirements just as if it were the original paper version (and the paper version may be destroyed).
Whew!
(Note: An unsigned I-9 is essentially the same as having no I-9 at all, since the signature is the vehicle through which the employee and employer attest to the validity of the information recorded.)
What Hasn’t Changed?
The documents from List A (or B plus C).
Must be reviewed by business day 3.
Then keep I-9s for the duration
Of employment (and past termination).
Essentially, most of the changes to the form are technical improvements. The essential rules of employment verification remain unchanged. So:
- You must still retain Form I-9 for every active employee. You may only purge these records after the longer of 1 year after termination or 3 years after hire (of an employee who has since been discharged). Don’t fall into the common misunderstanding of believing I-9s can be destroyed “3 years after hire” for active workers. Unless one of the handful of very limited exceptions applies, you must have an I-9 for every worker on your payroll.
- The window for completing the form is also unchanged. Section 1 must be completed by the employee no later than the first day of work. This section may be completed sooner as long as an offer of employment has been extended. Section 2, the employer’s verification, must then be completed 3 business days after the employee’s first day of work.
- You must still provide employees with the option to choose their preferred verification documents from the list of acceptable documents. The list of acceptable documents (also known as “List A,” “List B,” and “List C” documents) has not changed. As long as the documents offered are unexpired, appear to be genuine, and relate to the employee being verified, then they’re acceptable.
- There is a Spanish language version of the new I-9, but it is only to be used for verification by employers in Puerto Rico. However, employers outside Puerto Rico may use the Spanish language form as a cross-reference to assist workers with completing the English language version.
 Holly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.
She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee. Follow Holly Jones on Google+ Questions? Comments? Contact Holly at hjones@blr.com for more information on this topic |