New Form I-9: The “Smart” Practice

Use the new Form I-9 starting January 22, 2017

Just as employers and HR professionals were beginning to get comfortable with the parameters of the old Form I-9, U.S. Citizenship and Immigration Services (USCIS) rolled out a new I-9, effective January 22, 2017.

The new Form I-9 Employment Eligibility Verification is available on USCIS’ website in two versions – a “smart” PDF version (which USCIS simply calls “Form I-9”) and a Form I-9 “paper” version. The paper version can be printed and filled out manually. The PDF form, however, is an upgraded version of the former “fillable” I-9 PDF form, and contains advanced buttons and tech features designed to aid users in filling out the form. As always, new employees and their employers still must jointly fill out the I-9, but now have their choice between using the smart PDF version or the regular paper version of the new I-9.

“Smart” Changes

For those who rely heavily on their computer, the new I-9 PDF comes as a welcome change. For those who are computer averse, you are advised to familiarize yourself with the new smart PDF version of the I-9, as it includes protective measures to ensure compliance. The notable smart features include prompts to ensure information is accurately entered, the automatic filling of fields that do not apply, drop down menus and on-screen instructions for each field. In addition, the PDF form provides the ability to enter multiple preparers and translators. However, to be clear, the I-9 has not become electronic, so once the form is completed on the computer, it still must be printed out and manually signed and dated by all relevant parties. Further, use of the smart I-9 is not mandatory. If it is not possible for your business to use the new smart I-9, you may still print out the paper version I-9 and fill it out by hand. Both the smart I-9 PDF and the regular paper version I-9 PDF can be found on USCIS’ website:

Content Changes

In addition to rolling out a smart I-9, USCIS made some content-based changes to the form. Three notable changes were made to Section 1 (Employee Information and Attestation):

(a) “Other Names Used” was replaced with “Other Last Names Used”;

(b) Aliens authorized to work may now present an Alien Registration Number or USCIS Number (specifying which number), a Form I-94 Admission Number, or a Foreign Passport Number; and

(c) Employees must now indicate whether or not they used a preparer or translator to complete the form.

Two notable changes were made to Section 2 (Employer or Authorized Representative Review and Verification):

(a) The employee’s citizenship/immigration status must be input at the top of the Section; and

(b) A box with blank space has been added for “Additional Information,” which may include employment authorization extension notations or notations concerning employee termination and form retention dates.

It also should be noted that USCIS separated the form instructions from the form itself. Form instructions may now be accessed as a separate document where the I-9 is found (see USCIS website, above). Remember that all employees must have access to the form instructions when completing the I-9. The form instructions themselves have become much more detailed, with nine additional pages of instructions, which include examples, in depth instructions for preparer and/or translator certification and for employee presentation of form I-9 documents, and even instructions on proper abbreviations of “acceptable documents.”

Get “Smart”

What has not changed is that a new employee must still complete Section 1 no later than his/her first day of work for pay, and that an employer must complete Section 2 of the form no later than the third business day that the employee is working for pay. This is a strict timeline, and an employer’s failure to ensure timely completion of Form I-9 will open it up to civil liability. Since August 1, 2016, when the new civil penalty rate increases were put into effect, employer liability for I-9 errors or omissions can range from $216 – $2,156 per I-9, with the exact penalty amount dependent upon the number and severity of errors and omissions in the I-9. With the penalty rate increase, it has become even more important for employers to ensure I-9 compliance. In addition to becoming familiar with the new I-9 form itself and its instructions, using the new smart PDF form will help ensure compliance. Of course, the USCIS website contains additional information to guide employers, and legal counsel may always be consulted for any I-9 related issue, no matter how small.

Additional Assistance

Should you have any questions regarding the new Form I-9, or any other labor and employment matters, please contact any of the attorneys on our Labor & Employment Practice Team.