After a lengthy delay and extensive comment period, U.S. Citizenship and Immigration Services (USCIS) released today a revised Form I-9 (Rev. 03/08/13 N).
Executive Summary: After a lengthy delay and extensive comment period, U.S. Citizenship and Immigration Services (USCIS) released today a revised Form I-9 (Rev. 03/08/13 N). Employers may download the new form by visiting the USCIS web site at: http://www.uscis.gov/files/form/i-9.pdf. The government has made several significant changes to the Form I-9, which must be used by all employers to verify the identity and employment eligibility of new hires to confirm they are authorized to work in the United States. Although prior versions of the Form I-9 will remain valid for use until May 7, 2013, we encourage employers to begin using the revised form immediately.
Key Changes in The New Form
USCIS highlighted three key changes to the Form I-9 that it said are designed to minimize errors in completing the form. They are:
- Addition of new data fields. The revised Form I-9 debuts new fields for collecting data on the individual's foreign passport (if applicable), telephone number, and e-mail address. During the notice and comment period for the proposed form, employers voiced concern over the addition of the latter two fields. The Instructions to the Form I-9 now indicate that employees may voluntarily provide a telephone number and e-mail address in Section 1; however, if employees choose not to provide this information, they may write "N/A" instead. The Instructions also contain a vague (and somewhat ominous) explanation that DHS may contact the individual if there is a mismatch between government records and the information the individual provided.
- Revisions to the layout of the form. The length of the Form I-9 itself has increased from one page to two pages to accommodate the new fields, a larger font size, and a layout that is intended to be easier to read. Section 1: Employee Information and Attestation takes up the entire first page, while Section 2: Employer Review and Verification and Section 3: Reverification and Rehires are both on page two. The List of Acceptable Documents now includes clarifying language as to the types of documents that may be accepted for I-9 purposes, including language on restricted Social Security cards.
- Improvement in the form's instructions. USCIS has improved some of the language in the Instructions to the Form I-9 as well. For instance, the new Instructions include more definitive statements on the required timing for completing the Form I-9 and the employee's presentation of acceptable documents. The format of the Instructions has also improved the overall readability of the form, but the number of pages has doubled from prior versions (from three pages to six pages of Instructions). Additionally, USCIS indicates that it is in the process of updating "The Handbook for Employers" (M-274) – a useful guide for employers on completing the Form I-9 – to comport with the revised Form I-9 and that an updated version of the Handbook will be released soon.
What Employers Should Do Now
All employers should understand the impact of the changes and become familiar with the new Form I-9. While employers generally are encouraged to begin using the new Form I-9 right away, USCIS has heeded pleas for a transition period from employers for whom immediate use of the form would not be possible. Such employers include those that will need to update their internal business processes and train staff, as well as users of electronic I-9 systems that will have to be modified to conform to the new form's content and design changes. Employers have sixty days before they must begin using the 03/08/13 version of the Form I-9 exclusively. Prior versions of the Forms dated 02/02/09 and 08/07/09 will be accepted until May 7, 2013.
Please note that use of the revised Form I-9 is prospective – that is for new hires moving forward from today. Employers do not need to "re-do" the Form I-9s for existing employees already completed and on file. Excessive or unnecessary verification of existing employees may bring an employer under Department of Justice scrutiny for a violation of antidiscrimination provisions of the Immigration and Nationality Act.
What To Look Out For In The Future
The release of the new Form I-9 comes amidst growing political discourse over comprehensive immigration reform, a potential federal mandate that would require use of the electronic E-Verify system by more employers, and reported changes by U.S. Customs and Border Protection to convert to paperless I-94 Cards, which would eliminate a document commonly presented by employment-authorized temporary workers in the I-9 process. FordHarrison will continue to monitor these developments and the potential implications for employers.
If you have any questions regarding the revised Form I-9 or have other business immigration questions, please contact an attorney in our Business Immigration Practice Group, or the FordHarrison attorney with whom you usually work.