United States: Understanding The Revised I-9 Form

For employers of foreign national employees that may be subject to increased worksite inspections and I-9 enforcement during the Trump administration, understanding policy changes and ensuring ongoing compliance is critical.

On Nov. 14, 2016, the U.S. Citizenship and Immigration Services published a revised Form I-9, the form that all U.S. employers are required to complete to verify the identity and employment authorization of new employees. The revised form must be used for all new hires starting on Jan. 22, 2017. Completing Form I-9 frequently causes confusion, in particular when hiring foreign national employees as they may possess a variety of unfamiliar employment authorization documents. However, as investigation and enforcement of Form I-9 completion and practices is expected to increase as a result of the new administration's focus on immigration, understanding and complying with all I-9 requirements is more important than ever for employers.

'Smart' Features

One of the key changes made by USCIS is the introduction of a "smart" form, which is a form that can be downloaded and completed on a computer and includes a variety of electronic enhancements aimed at reducing errors and facilitating form completion.

Specifically, the "smart" I-9 form includes such electronic features as embedded drop-down lists, calendars to fill in dates, and hover-over instructions to assist employers and employees in completing the form. In addition, after the employer and employee have filled out the form, the computer version of the form will point out technical errors and will indicate if a field was left blank. Other such enhancements include auto-populating of certain fields based on information entered in other fields and prompts in certain fields to ensure that information is entered correctly.

Employers will likely find these changes helpful as the electronic enhancements provide helpful tips and error-corrections while completing the form. These electronic changes are also similar to the way many documents and forms are completed online -- with such features as hover-over instructions and automatic error-checking being common features of many web-based forms.

It is important to note that the "smart" form is not an electronic I-9 form. This means that even the "smart" form must be printed in hard copy, signed in the original, and stored in compliance with all I-9 regulations.

USCIS also continues to provide a "flat" PDF version of the I-9 form that can be printed and filled out by hand.

Changes to the Language and Fields of the Form

Further, the revised Form I-9 now provides a separate area for writing in additional information, rather than adding it to the margins. In particular, this is a helpful feature for employers of foreign workers who are eligible for employment based on documents and situations not listed in Lists A, B or C (for example, a foreign national with an H-1B who is eligible to work pursuant to a pending H-1B extension). Such a seemingly basic change to the form demonstrates an acknowledgement on the part of USCIS of the various complex employment authorization situations that come up when hiring foreign national employees.

A few other changes to the completion of the Form I-9 are intended to make the process of completing the form easier and more in sync with how employers actually prepare the form. For example, Section 1 of the form now asks for "Other Last Names Used," rather than "Other Names Used." Additionally, foreign nationals authorized to work in the U.S. now need to enter either their Form I-94 Admission Number or their foreign passport number in Section 1, rather than both as previously required.  For situations in which multiple translators or preparers are required, the Form now has the ability to enter multiple preparers and translators, with a separate field for each preparer and translator.

Employers will also notice that as part of the changes to the form, the I-9 instructions have grown to 15 pages, and are now separate from the form itself.

For employers of foreign national employees, compliance with I-9 employment verification requirements is likely to become more scrutinized under the new administration. Indeed, one feature of the "smart" form points to the likelihood of increased I-9 investigations. When the employer prints the completed form, a quick response (QR) code will be automatically generated, which can be read by most QR readers. Although USCIS has not specifically explained the purpose of this feature, the codes may be used in the future by U.S. Immigration and Customs Enforcement to more efficiently review and audit employers' I-9 files.

HR personnel should therefore take the I-9 revisions as an opportunity to review their I-9 completion practices and make sure they are in line with all regulatory requirements, in particular when completing the form for foreign workers.

The changes to the I-9 form and instructions are primarily in formatting, intended to make the completion process easier and clearer for employers. The substantive I-9 requirements remain the same.

In particular, as mentioned above, even though one version of the new I-9 form can be downloaded and completed on a computer, employers must still retain a hard copy print-out of either the "smart" or "flat" form with their original signatures. Employers may also continue to store electronic copies using their electronic storage systems that have already been found to comply with USCIS electronic retention and signature requirements (the computer version of the new I-9 form does not, by itself, meet these requirements).

Further, these changes do not make any alterations to the lists of acceptable documents for either identity or employment eligibility verification. The rules for when the form must be completed by employees and employers, and how long it must be retained, also have not changed.

Moreover, what has not changed -- yet -- is the M-274 Handbook for Employers, provided by USCIS to assist employers in completing Form I-9. USCIS has indicated that a new handbook that takes into account the revisions to the I-9 form will be released by Jan. 22. Before then, employers should use the form instructions for help in completing the new form.

While the new "smart" form has features that may make I-9 completion easier and more efficient, employers are still responsible for the accurate completion and retention of the forms. The "smart" form does not cross-check information between sections, and does not have the capability to verify that information is accurate. Continued care with completing and reviewing I-9 forms is vital and is just one of the ways that employers can prepare for potential increased government oversight.

How Employers Can Prepare

Trump's victory raises numerous concerns for employers of foreign national employees, as immigration reform and compliance is expected to be a major focus. This could certainly result in increased enforcement and investigations of Form I-9 employment eligibility verification compliance to ensure that all foreign workers are eligible for employment in the U.S.

For employers and human resources personnel, I-9 completion for foreign national employees already comes with challenges. Questions often present themselves in the form of unfamiliar employment authorization documents and a variety of employment authorization situations that are not all clearly laid out in the lists of acceptable documents.

On top of that, the penalties for I-9 violations became more severe even before the election. Monetary penalties for I-9 violations nearly doubled in a penalty increase that went into effect on August 1, 2016. The minimum penalty for an I-9 violation increased from $110 to $216 and the maximum increased from $1,100 to $2,156, per individual. Under the new administration, with increased audits and oversight likely, the risk of larger civil monetary penalties is greater as well.

To prepare, employers should first understand the changes to the I-9 form and determine whether they will benefit from using the new "smart" form. Employers can also take these changes as an opportunity to refresh their knowledge of the substantive I-9 requirements that have not been affected.

Moreover, particularly for employers who hire foreign workers, I-9 trainings should include an overview of typical employment authorization documents as well as some less familiar employment authorization situations, such as rules allowing H-1B workers to change employers or continue working while an H-1B extension is pending. Such an overview will better equip employers to properly complete the I-9 form and also to identify instances where further scrutiny of employment authorization documents is required.

Lastly, employers can conduct audits of their current I-9 files. It is never too late to review I-9 forms that were previously completed and determine how to correct errors, if any. Such audits can also help to identify common errors that can be addressed moving forward.

Implementing procedures and policies for continually reviewing I-9 files and establishing a practice of I-9 training will aid employers in setting up a long-term, forward-looking practice of I-9 compliance.

Originally published by Human Resource Executive Online.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.