• November 23, 2016

Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to verify the employment eligibility of new employees by reviewing acceptable documents provided by the employee — to establish the employee’s identity and work authorization — and then completing an Employment Eligibility Verification, commonly known as Form I-9. The employer must first provide the Form I-9, which consists of three sections, to the new employee and ensure that the employee correctly fills out and signs Section 1. Then, after inspecting the employee’s documents, the employer must complete and sign Section 2. The employer is obligated to finish this process by no later than the third business day of employment. Section 3 is completed later, if the employee is rehired or must be reverified because his or her work authorization is set to expire.
Ever since the first version of the Form I-9 was published in 1987, employers have struggled to complete the form correctly. Even though the form is relatively short — currently two pages — the Form I-9 process can be confusing, and employers frequently make mistakes. Unfortunately, those mistakes often lead to costly fines.

To help employers avoid errors, the U.S. Citizenship and Immigration Services has periodically updated the Form I-9 and its associated instructions. The most recent Form I-9, which was issued on March 8, 2013, is the 11th edition of the form and the first to exceed a single page. This March 8, 2013, form was slated to expire on March 31, 2016, and, in fact, bears that expiration date on its face.

On Nov. 15, 2015, USCIS published a 60-day public comment notice in the Federal Register announcing its intention to issue an updated Form I-9. This new edition includes a number of important changes designed to make the form more “user-friendly” and alleviate mistakes in the completion process. Most significantly, the changes will create a “smart” version of the form that can be accessed and completed on the USCIS website at uscis.gov.

After reviewing the public comments received during the 60-day notice period, USCIS made a few additional tweaks to the Form I-9 and, on March 28, 2016, reissued the form for another 30-day comment period.

Now that this comment period has expired, USCIS will make any final changes and submit the form to the Office of Management and Budget (OMB) for approval. Once approved, the new form and its instructions — which are also being revised — will be posted to the USCIS website. At that point, unless there is some departure from current practice, employers will only be allowed to use the new edition of the form to verify employees.

It is not clear exactly when this final updated Form I-9 will be released or what additional changes, if any, USCIS will make before that happens. However, it’s expected that the new Form I-9 will be unveiled relatively soon, likely within the next few weeks. And it’s also a safe bet that, whenever the new form is finally issued, it will not differ significantly from the version that USCIS has proposed in its recent notices.

The New Smart Form I-9

The most significant change is the creation of a smart Form I-9 that users will be able to access and fill out on USCIS’s website. This smart form includes a number of new features, including drop-down menus, hover text and real-time error messages, which are all designed to guide the user through the process and reduce errors. This form is not an “electronic” Form I-9 within the meaning of the USCIS regulations, but instead a functionality tool to ensure that the form is completed correctly.

Using the new smart Form I-9 is not required. Employers will still have the option to simply print out the form and complete it entirely by hand. In fact, USCIS has indicated that users will be allowed to complete any and all sections of the Form I-9 on paper, on a single computer, using separate computers, or any combination of those three options. Even if the employer chooses to use the smart version of the form, the form must still be printed out and signed by the employee and the employer representative.

A number of new features have been introduced that should facilitate the form completion process. For instance, many of the fields in the form have instructional text that pops up when the user hovers the cursor over the field. Some of the fields also are equipped with a “?” icon that provides more detailed instructions when clicked on by the user. In addition, the form includes prominent buttons in the top margin that allow the user, at any time, to clear the form entirely and start over, to print the form, or to link electronically to the full Form I-9 instructions.

The smart form will also alert the user if certain fields are left blank or filled out incorrectly (for instance, if an employee inputs a Social Security number containing only eight digits). And, at the end of each section, the user will be prompted to click on a button to confirm that all of the required fields have been properly completed; if there are incomplete fields, the user will be prompted to add information.

One helpful innovation in the smart form is a new feature designed to ensure that the information provided by the employee is consistent with the citizenship/immigration status indicated by the employee in Section 1. Once the employee checks the box to indicate his or her citizenship/immigration status, those fields that do not apply to the employee’s status will automatically be filled in as “N/A.”

For instance, if an employee checks the box indicating that he is a lawful permanent resident, all of the information fields that apply to an alien authorized to work will be marked as not applicable. Among other things, this should help prevent a common error which occurs when an employee indicates that he is a lawful permanent resident, but then incorrectly lists his green card expiration date in the space intended for an alien authorized to work to list his work authorization expiration date.

In addition, the List A, List B and List C documentation fields now include drop-down menus that list out the types of documents that an employee may present within those list categories. Once the employee’s citizenship/immigration status is indicated on the smart form, those drop-down menus are tailored so that the employer may select only documents that correlate to that citizenship/immigration status. If the documents presented by the employee don’t match, the form will provide the employer with pop-up instructions on how to proceed. In this way, the smart form should help the employer correct errors while completing the form and, in some cases, help identify more serious problems with the employee’s documentation and work eligibility.

Other Changes to Form I-9

The new Form I-9 also includes a number of changes to both the wording and formatting, as well as a few modifications that are more substantive. One important change to the form is the removal of the requirement that an alien authorized to work list both her Form I-94 number and her foreign passport number in Section 1. Now only one of those numbers is required.

A new question also appears on the form asking whether one or more preparers or translators assisted the employee in completing Section 1 of the form. If the employee checks “yes,” all of the preparers and translators who provided help are required to complete a certification about their assistance. If the employee is using the smart version and answers affirmatively that she has used one or more preparers or translators, the form will prompt the employee to indicate how many. The form will then automatically generate separate certification sections for each preparer or translator to complete and sign. If the employee is completing the Form I-9 by hand, there is now a special supplement designed to accommodate multiple translator and preparer certifications.

Another significant change to the new Form I-9 is a clarification that the employee is required to list only “other last names used” rather than “other names used.” Additionally, the form will contain a new box where the employer may provide additional information, as necessary, when competing the section on the employee’s documents.

Employers should begin familiarizing themselves with the coming changes to the Form I-9. A smart version prototype, which can be used to preview the form’s new functionality, can be found on the Federal Register website.

In the meantime, USCIS has indicated that until the new Form I-9 is finalized employers should continue using the March 8, 2013, edition, even though it bears the March 31, 2016, expiration date.

—By Keith Covington, Bradley Arant Boult Cummings LLP

To view the original post, please visit http://www.law360.com/articles/797131/what-employers-should-know-about-the-new-smart-form-i-9