USCIS Form I-9

USCIS Form I-9 is a form issued by the U.S. Citizenship and Immigration Services. In late 2016, USCIS issued a revised version of the form for Employment Eligibility Verification, or USCIS Form I-9, which took effect Jan. 22, 2017. Prior publications of Form I-9 are no longer valid because information has been changed or otherwise updated.

Some of the changes that were incorporated into the new form are:

  • Drop-down lists
  • Calendars
  • On-screen instructions
  • An option to clear the form and start over

If a company fails to file the new version of the form, if an audit arises, they may have fines levied against them and possible additional penalties.

If an employer subsequently files the correct version of the form, including a signed and dated document explaining the reason for the oversight, then The Department of Homeland Security may grant some relief from the penalties to which the employer was originally subject.

Instructions have been beefed up to 15 pages from six, so that it can give users more guidance, and the acceptable documents list and retention requirements have remained the same.

The new form can be obtained through the website for the U.S. Citizenship and Immigration Services. The new I-9 form will expire  Aug. 31, 2019.

I-9 Form Revisions

The Office of Special Counsel for Immigration-Related Unfair Employment Practices, which governs the enforcement of the I-9, has switched its name to the Immigrant and Employee Rights Section.

The Form I-9 revision was motivated mainly by a new Department of Homeland Security rule that relates to non-U.S. citizens who come to the U.S. to start or expand a business.

The “International Entrepreneur Rule,” advanced by the Obama administration last year allows eligible startup business owners stay in the U.S. for a specifically defined amount of time. This time period is known as “parole.”

In order to qualify for parole under the new rule, business owners must show a significant, established likelihood of a swift growth in business, the creation of jobs, and also that it offers a compelling benefit to the U.S. general public.

If an entrepreneur’s parole is granted, it is only valid as it relates to collaborating on a specific startup.

Why Form I-9 Was Changed

Form I-9 was changed to allow an immigrant entrepreneur to offer a foreign passport and Form I-94, which serves as proof of entrepreneur parole. A non-U.S. passport can then be accepted as proof of identity and authorization to work in the U.S.

Completing Form I-9

The new I-9 form offers three ways for users to fill it out. They may:

  • Print it out and enter the information with a pen,
  • Complete it online, and then print and sign it. If the form is filled out electronically, it still needs to be printed out and signed by hand.
  • Use an electronic I-9 vendor.

When using an electronic I-9 vendor, an employer needs to make sure that the electronic product is properly completed to make sure that the vendor is collecting all of the information required by the new Form I-9.

Benefits of the New Form I-9

The main benefit of using the online version of the form is that once both employee and employer are finished entering their respective parts of the form, the submissions will be reviewed for correct format. If errors are detected, the system will relay what it is on the form that needs to be fixed.

A key change with which users need to comply is that they must now enter N/A in any fields that they previously would have simply left blank.

For instance, if a user has no information to enter in fields that ask for things such as an apartment number, a middle initial, or a Social Security number, those fields must now be populated with an N/A, rather than being left blank.

The form also has been modified to reduce the administrative burden on foreign workers. If a new employee claims to be a foreign national authorized to work in the U.S., they can submit a foreign passport number an alien registration number, or a Form I-94 admission number.

Before the new form was issued foreigners, who were allowed to work in the U.S. legally had to produce both a Form I-94 number, along with foreign passport information.

Both employees and employers must complete different sections of Form I-9. If an employee is completing the form using the U.S.C.I.S. website, the worker's name will self-populate on a new page in Section 2, the part of the form that an employer must complete.

The online version of Form I-9 was designed in an effort to use technology in helping to assist employees and employers in the I-9 process.  However, reviewing documents with a new employee using Facebook or Skype is not allowed under the terms of the new form.

New Form is Comprehensive, But Not Perfect

While the new Form I-9 is comprehensive, it is not perfect. In order to remain compliant, human resources departments need to keep up with all immigration-related anti-discrimination laws.

Also, the U.S.C.I.S. has provided a separate text box in Section2 for employers to add information for which there is no provision made on the form. This can be used as opposed to where notations used to have to be written along the margins of the form.

Employees must re-verify their employment authorization using Form I-9 when their original authorization documents expire.

New Version of I-9 Handbook for Employers Released

In February 2017, the U.S.C.I.S. published a long-awaited revision to the Handbook for Employers, Guidance for Completing Form I-9, known as the M-274.

Employers have been waiting the new handbook to be released. In an effort to comply with U.S.C.I.S. regulations, they have been looking for additional guidance about how to properly complete the new Form I-9. Employers can download the revised M-274 from the U.S.C.I.S. website.

The revised M-274 is a hefty handbook, running roughly 69 pages cover to cover. The M-274 is not only the official document used to help with compliance regarding the new Form I-9, it is also often used by the Immigration and Customs Enforcement, or ICE, auditors who review completed I-9s for compliance.

The U.S.C.I.S. now permits the use of a P.O. Box in section 1 of the I-9, in order to address concerns by employees who participate in state address confidentiality, or in a safe-at-home program, who may not want to reveal their addresses.

I-9 Central

Employers are already familiar with the term ”I-9 Central,” which is the nickname the U.S.C.I.S. uses to describe the online library of resources and tips available to help properly complete the new Form I-9.

When the foreigner is a refugee, I-94 states that unexpired refugee admission stamp or an electronic Form I-94 printout, with an admission class of “RE,” is acceptable documentation to establish identity and employment authorization, for 90 days.

The new M-274 handbook now includes an entire section about the procedure to correct mistakes made on the I-9, no matter in which section they take place. It is also necessary to note that there are quite a few factors to keep an eye on conducting a self-audit.

Significant Changes to the M-274

The largest change of the M-274 is a change in the documentation process for automatic extensions of Employment Authorization Documents, or EADs, to help foreign national employees who work in the United States.

EAD extensions that are automatic are a newer concept, which drew on a Department of Homeland Security rule. The rule offers extra benefits to highly skilled non-immigrant workers in the United States.

Under this new rule, EADs can be automatically extended for as much as 180 days. This is true only for those individuals who file a timely renewal of EADs that are in the same category as their previous EADs.

The new handbook enumerates the different categories into which currently eligible foreign nationals fall in order to qualify for an automatic extension. It also sets forth the process that is used to review the necessary documents and including that information on the I-9.

Some employers who are familiar with Temporary Protected Status, or TPS, will already be familiar with the procedure. It basically involves updating Section 1 and Section 2 to update the automatic extension start and expiration dates.

Employers now also must review the underlying documentation much more carefully in order to ensure the employee still qualifies.

In addition, the M-274 lays out new instructions for documentation, which must be retained when the employer files an extension for an eligible employee. The handbook also contains a provision for the retention of I-9s, one that is, in fact, inconsistent with the rules put forth by the ICE.

U.S.C.I.S. VS. ICE

In particular, the M-274 states that “Employers must retain a Form I-9 for each person hired. This requirement applies from the date of hire, even if the employment ends shortly after hired, the hired employee never completes work for pay or never finishes the Form I-9.”

The U.S.C.I.S. seem to be saying that employers need to keep their employees’ I-9 forms, whether or not they start to work or ever receive a paycheck.

However, the ICE states that an employer is not required to keep a Form I-9 for an individual who doesn’t ever begin to work for pay, and therefore wouldn’t be forced to produce that I-9 if there were to be an inspection.

If you need help understanding and completing the New Form I-9, you can post a request on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and have an average of 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.