United States Citizenship and Immigration Services (USCIS) has announced that starting January 22, 2017, all employers in the United States will be required to use the new version of the Form I-9 exclusively to conduct employment eligibility verification. The latest revisions to the Form I-9 were approved by the Office of Management and Budget (OMB) on August 25, 2016. The approved I-9 revisions include both “smart” features and content-based changes. The smart features will allow users to access and fill out a smart Form I-9 on USCIS’s website. The content-based revisions to the Form I-9 add new fields and update the language found in other fields. In addition to these changes, the new smart form automatically generates a “QR Code” that will be used by U.S. Immigration and Customs Enforcement auditors.
Smart Features of the New Form I-9
Taking lessons from the electronic I-9 systems developed by the private sector, the new smart Form I-9 will facilitate compliance by guiding users throughout the process and incorporating various features—drop-down menus, hover text, and real-time error notifications—which allow users to reduce errors when completing the form. The new I-9 form also includes an alert that is triggered when the system detects that a required field was left blank or incorrectly completed. Importantly, the new smart form incorporates a new feature that will increase compliance by helping ensure that the information provided by an individual employee is consistent with the citizenship or immigration status indicated by the employee in Section 1 of the form. The form automatically marks fields that do not apply to an employee’s selected status with “Not Applicable.”
Further, new drop-down menus for the List A, List B, and List C document fields in Section 2 are specifically tailored so that a user may select only the documents that correspond to the employee’s citizenship or immigration status. If an employee presents a document that does not match the citizenship/immigration status selected in Section 1, the smart form will alert the employer with a notification message and provide instructions on how to proceed.
Content-Based Changes to the Form I-9
The newly revised Form I-9 also includes content-based changes to the form’s requirements and accompanying instructions. With regard to Section 1, USCIS has made four changes. First, USCIS replaced the “Other Names Used” field and replaced it with “Other Last Names Used” (emphasis added); this change may help avoid potential discrimination issues and heighten privacy protection for transgender individuals and others who have changed their first names. Second, employees who provide an Alien Registration Number (A-number) or USCIS number in Section 1 must now indicate whether the number provided is an A-number or USCIS number. Third, the new form requires certain foreign national employees to enter either their foreign passport information or their Form I-94 information, but not both as in the prior version. Fourth, the new Form I-9 allows multiple preparers and/or translators to participate in the completion of the form. Each preparer and translator used must complete a separate “Preparer and/or Translator” section. If the employee does not use a preparer or translator, the employee will check a new box labeled “I did not use a preparer or translator.”
USCIS also made changes to Section 2 of the Form I-9 by adding two additional fields of information to be completed. First, USCIS included a new field at the top of Section 2 labeled “Citizenship/Immigration Status.” This new field requires the employer to input the number correlating with the citizenship or immigration status input by the employee in Section 1. Second, USCIS also included a new field that allows employers to input additional information that is currently being notated in the margins of the current Form I-9.
The new smart Form I-9 promises to make compliance easier for employers, but until USCIS actually publishes the new form, it is premature to conclude that the form will be error-proof. Further, although the new smart Form I-9 is to be completed on USCIS’s website, it is not an “electronic I-9” as defined by U.S. Department of Homeland Security regulations. Thus, employers choosing to utilize the new smart form must print a copy of the form and proceed with their normal signing, storing, and reverification practices for paper Forms I-9.
While the current Form I-9 (the 3/8/2013 version) expired on March 31, 2016, USCIS has not yet published the newly approved revision. Consistent with previous Form I-9 validity periods, the OMB Notice of Action provides that the new Form I-9 will have an expiration date of August 31, 2019. USCIS stated that employers may continue to use the current 3/8/2013 version of the Form I-9 through January 21, 2017. After that date, the new version of the Form I-9 will be mandatory and the 3/8/2013 version will become invalid.
Bernhard Mueller is a shareholder in the Columbia office of Ogletree Deakins.
James N. Garilas is a 2016 graduate of the University of South Carolina School of Law and is currently awaiting admission to the state bar of South Carolina.