What's new on the Form I-9? What direction is enforcement taking?

November 17, 2016

Immigration Law Alert

Author(s): Jason Gerrol

USCIS published a revised version of Form I-9, Employment Eligibility Verification, which all employers must use by January 22, 2017. The revised Form I-9 contains several new questions, as well as “smart” form features. ICE has the responsibility for inspecting an employer’s Form I-9 records and assessing fines for violations.

On November 14, 2016, U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification. The Form I-9 requirements were first established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA), which requires employers to verify the identity and employment authorization of new hires on Form I-9.

When are employers required to start using the new Form I-9?

The new version of Form I-9, dated 11/14/2016 N, must be used by January 22, 2017. Prior to January 22, 2017, employers may continue to use the version dated 03/08/2013 N, or use the new version.

What is new on the Form I-9?

There are several differences between the new Form I-9 and previous versions. First, USCIS has adopted a “smart” Form I-9, making it easier to complete on a computer. For example, while the full instructions are now a separate document from the Form I-9 itself, the form contains embedded instructions for completing each field; drop-down lists and calendars; an icon that allows for access to the full instructions; and icons that allow a user to clear the form and start over, or print the form. The new form also contains prompts to ensure information is entered correctly and contains several important compliance safeguards (e.g., not allowing an employer to enter a List A document if List B and List C documents have already been entered). In addition, a quick response (QR) barcode will be generated once the form is printed, which can be used by Immigration and Customs Enforcement (ICE) to facilitate the review process in the event of an audit.

There are also changes to the questions asked on Form I-9. First, Section 1 of the Form I-9 no longer requires an employee to provide “other names used,” but rather asks for “other last names used” to protect the privacy of employees who may have previously used a different first name. In addition, foreign national employees can enter either their Form I-94 number or foreign passport information, not both as required on prior versions of Form I-9. For employees who indicate a status of legal permanent resident, the form requires the employee to clarify whether the number provided is an A-number or a USCIS number (although currently an employee’s A-number and USCIS number should be the same). Furthermore, if the employee did not use a preparer or translator to assist in completing Section 1, the employee must now affirmatively check a box labelled “I did not use a preparer or translator.”

For Section 2 of the Form I-9, USCIS has added a “Citizenship/Immigration Status” field, which requires an employer to select a citizenship/immigration status corresponding to the citizenship/immigration status selected by the employee in Section 1. In addition, Section 2 now contains a dedicated area where an employer can enter additional information, such as in the case of notating H-1B visa portability, rather than being forced to enter such information in the margins of the form.

Does the new Form I-9 need to be signed?

While the new Form I-9 has been labelled a “smart” form, employers should note that the form is not an electronic Form I-9 as defined in the regulations, and employers completing the new form will still need to obtain handwritten signatures. In addition, while the new “smart” form features should minimize some common errors in both Section 1 and Section 2 of Form I-9, such features will not safeguard an employer from all technical and substantive Form I-9 violations and should not be relied upon as a substitute for careful review of the Form I-9 instructions.

What are the Form I-9 violation fines?

On August 1, 2016, the USCIS announced higher fines for Form I-9 errors. The fines increased to a range of $216 to $2,156 per violation (from $110 to $1,100).

If the same mistake is made by an employer on every employee’s Form I-9, the resulting fine can be substantial as each one could result in up to a $2,156 fine.

Where does Form I-9 enforcement currently stand?

Immigration and Customs Enforcement (ICE) agents and auditors inspect Forms I-9 for compliance and issue monetary fines for a range of violations that include minor technical violations to egregious substantive violations such as employing unauthorized workers.

About this time last year, ICE issued its statistics showing that I-9 audits dropped considerably—by more than half—between FY 2013 and FY 2014. The decline in the number of audits was thought to signify a policy shift under the Obama administration.

What does the future hold for Form I-9 enforcement?

With the upcoming Trump administration, which claims it will focus on immigration policies, particularly with respect to unauthorized workers, it is likely that Form I-9 compliance and enforcement will once again become a major focus for both USCIS and ICE.

Accordingly, employers should be vigilant in their Form I-9 compliance, review their existing process and conduct regular self-audits of their Form I-9 records.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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