U.S. Citizenship and Immigration Services (USCIS) recently issued a new, fillable Form I-9. While not a true electronic Form I-9, employees and their employer representatives can complete the form online at https://www.uscis.gov/i-9, and then print and sign the form for retention. Alternatively, employers can print the form and complete it manually, or complete the new Form I-9 through electronic Form I-9 software. Beginning January 22, 2017, only this new Form I-9 can be used.
The new Form I-9 contains structural changes, substantive changes, and electronically embedded smart-features to help protect against inadvertent errors. Some of the features are pretty snazzy, but employers should not confuse the enhanced form with electronic Form I-9 software. Any employer not utilizing electronic Form I-9 software must still print the form and obtain handwritten signatures.
The smart-features for easier completion are available when filling out the form in Adobe Reader and include drop-down lists and calendars for entering dates, prompts to help ensure that Social Security Numbers and other data are entered properly, on-screen instructions for each field, and buttons that allow users to access the full instructions, start the form over, and print the completed form for signature.
Another welcome change is that a preparer will receive an error notification if all required fields have not been completed for Section 2. But beware – No such feature exists for Section 1. Employers should be cautious about over-reliance on the enhanced features, because they are not fool-proof, and employers remain responsible for proper completion of all sections of the Form.
There is also a “paper version” which is unfillable. An employer using the unfillable version should be familiar with the drop-down menus for document titles and issuing authorities to minimize errors. The new 15-page instructions provide useful charts with document title names and accepted abbreviations for List A, B, and C documents. Employers should read these instructions and again, beware, or at least be more cautious in completing the Form I-9. Going forward there may be less wiggle room to argue that an employer did not know how to list the document title or issuing authority given the new instructions and drop down features.
Other notable changes to the new Form I-9 include:
- Additional spaces to enter multiple preparers or the use of a translator, and a check box labeled “I did not use a preparer or translator,”
- A field to enter additional information such as E-Verify confirmation numbers, termination dates and correction notes,
- Creation of a QR code once the Form I-9 is completed electronically, and
- A new “Citizenship/Immigration Status” field in Section 2.
This fillable Form I-9 and the instructions are a clear upgrade from prior versions, and should help employers minimize mistakes. With the anticipated update of the M-274 I-9 Handbook for Employers in January 2017, employers will have access to clearer guidance on how to complete the new Form I-9.
As one might expect, clearer guidance on how to comply with the law sometimes comes with greater penalties for compliance failure. In this case, the increase in penalties only shortly preceded the new Form I-9 and improved instructions. As of August 1, 2016, the Department of Homeland Security increased the fines for violations from a range of $110-$1,100 per Form I-9, to an almost doubled range of $216-$2,156 per Form I-9. Minimizing I-9 violations has never been more important.
With clearer instructions on how to complete the Form I-9 following closely on the heels of a significant increase in civil fines for I-9 violations, employers should be extra cautious in completing Forms I-9. Employer should also review their I-9 compliance policies and consider a proactive audit to mitigate existing liability in advance of the anticipated increase in enforcement activity after the new Trump Administration settles in. In some circumstances, paperwork violations can be mitigated, and thousands of dollars in potential liability eliminated, if properly corrected during an audit before Homeland Security Investigations comes knocking.