It’s Time to Cozy Up to the New I-9

It’s time for employers to get acquainted with the new Form I-9. The form is easier to use than the old version, but with just a few weeks left before employers have to make the switch, it’s a good idea to get familiar with the form now, says Jacob Monty, managing partner at Monty & Ramirez, LLP.

U.S. Citizenship and Immigration Services (USCIS) issued the form November 14 and while employers are free to use either form for now, they must use the new form beginning January 22, 2017.

Of all the changes, the “smart” features are the most notable. They make the form much more user-friendly, Monty told BLR^®. “It’s really the first time employers can have an automated experience that makes it idiot-proof.”

One of the most common errors occurs in Section 2 where the form asks for documentation, according to Monty. Many employers mistakenly ask for too many documents; the new automated form makes that error impossible now, he said.

“This is a welcomed version that employers really needed,” Monty said. But even though it makes life easier, the new features make it important to make the switch early. “I would encourage employers to get familiar with it now,” he said.

Importantly, the smart features of the form require that employers have updated software. If you’re unable to use the form, USCIS still offers a “paper version.”

The form also now makes clear that the person who reviews an employee’s documentation must be the person who signs the required attestation. Monty said that some employers had hoped that a company representative could review the documents—for a new remote employee, for example—while a corporate official at another location signs the form. Under the previous version of the form, it was uncertain whether that was permissible, he said, but “the new form makes clear that the person who signs must be the person who looked at the documents.”

Short of meeting with the employee in person, this leaves employers with only one option: hire a representative to review the documents in the employee’s presence and sign the form. But of course, the employer still will be liable for any violations, according to the USCIS website.

Despite the form’s new “smart” features, employers still must print their I-9s and obtain the required signatures on the hard copy.

And, as was the case before, only employers in Puerto Rico are permitted to use the Spanish version of the form. Monty acknowledged that this creates a problem for some employees but said he discourages employers from serving as a translator.

It’s tempting to try and help the employee, he said, but then the employer may be taking on the added responsibility of being the form’s preparer, “and we really discourage that.” At most, an employer could consider printing out a completed sample I-9 for the employee to review. “But don’t actually complete it for the employee,” he said.

For more information about what’s new—and what isn’t—see One Form, Two Form, Here’s A New Form: More Details On the New I-9.

Time for an Audit

In addition to switching to the new form, employers also should audit their I-9s, Monty said. The federal government recommends audits as a best practice and Monty says he recommends that employers conduct them internally.

But that doesn’t mean you need to look at every form, he said. If you have an inordinate amount of employees, you don’t have to review the whole population. Maybe just review a third, Monty suggested, because you’re going to see the same errors repeated.

Also, it’s important that the person performing the audit is not the one who prepares the I-9s. “The most successful internal audits I’ve seen are when you have a second set of eyes look at the document,” he said. “If you were the one preparing the I-9, it’s not as helpful because you’re not going to see the error.”

And if you do discover errors, correct them in red ink and date them accurately. “The law doesn’t require perfection but it does require good faith,” Monty said. You never want to backdate an I-9 or falsely make it appear that you completed it correctly the first time. In fact, it’s better to call attention to the fact that you didn’t do it correctly the first time and avail yourself of the law’s strong good-faith defense, he said.

Ensuring that your I-9s are completed correctly may soon be more important than ever, Monty noted. If the incoming administration’s focus on immigration is any indication, “employers are going to be held accountable for getting this form right.”

To access all versions of the form and its instructions, visit https://www.uscis.gov/i-9.

Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies.