by Michelle Ferber and Traci Holian
All employers are required to provide both their employees and the Department of Homeland Security with the Employment Eligibility Verification Form I-9 (generally called the Form I-9). The Form I-9 is used to establish that the employee is eligible to work in the United States. A revised Form I-9 has been approved and will be available online starting November 22, 2016. As of January 21, 2017, the use of any prior version will be considered invalid. Until January 21, 2017, the current Form I-9 may be used.
The revised Form I-9 contains structural changes, substantive changes, electronically embedded fail-safes to protect against inadvertent errors, and new instructions. The revisions were derived from agency adjustments to address common points of confusion which can result in costly mistakes. The changes were not based on any statutory changes.
Improvements
Changes to the Form I-9 were implemented to address both potential discrimination, as well as, common points of confusion from both employers and employees alike. The revised Form I-9, when filled out electronically, will contain embedded fail-safes in field entries requiring precise information. For example, it can discern when numbers are missing from the social security field or from the expiration date of the employee’s government-issued identification. There will be embedded instructions for each field, drop-down lists, and tools to allow users to print and clear the form. Finally, there will be a quick-response matrix code (“QR” code) which will be automatically generated when the form is printed.
Transgender Bias Elimination
Substantively, the Form I-9 will no longer require workers to provide former first names used. Instead, workers are asked only for former last names. This change was made to reduce the possibility of discrimination against transgender workers.
Other Substantive Changes
The revised Form I-9 adds a new “Citizenship/Immigration Status” sub-section to Section 2. Also, it removes the previous requirement that immigrants authorized to work provide both their Form I-94 number (U.S. Customs and Border Protection) and their foreign passport number in Section 1.
Considerations
Mistakes in the Form I-9 can result in both civil fines and criminal penalties where there is a pattern of violations. It is important for employers to use the correct version of the Form I-9 to avoid violations. It is important to become familiar with the changes and new instructions. While it can be difficult to stay up-to-date with changing forms, the extension through January 21, 2017, allows for plenty of time to prepare.
Importantly, while the revised Form I-9 does contain embedded instructions, the employer is still required to provide the instructions to the employee completing the form. To protect your organization and understand the new form, on November 22, 2016, or soon thereafter, visit the Department of Homeland Security website and begin saving and reviewing the revised Form I-9.
Questions
For more information please visit U.S. Citizenship and Immigration Services at the Official Website of the Department of Homeland Security located at: www.uscis.gov/i-9. The current form is available online at https://www.uscis.gov/sites/default/files/files/form/i-9.pdf. It is possible to obtain training on the Form I-9 through the U.S. Citizenship and Immigration Services website provided above. The revised Form I-9 will be available at the same location beginning November 22, 2016.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.