Proposed Changes to Form I-9 Create New Compliance Questions

Employers take note: a new Form I-9 is in the making.  U.S. Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security, announced on November 24, 2015, that it is seeking public comment on the various proposed changes.  The proposed changes will have far-reaching impact because all employers are required to complete and maintain the Form I-9 for each employee hired to verify their identity and authorization to work in the United States.  Click here to download and view the proposed new form.

USCIS said the proposed changes to the Form I-9 are aimed at reducing technical errors and making the form easier to complete in a downloadable version available at uscis.gov.  The proposed form includes some impressive new features to ensure information is entered properly,   such as drop-downs, field checks, and instructions accessed by moving your computer cursor over the question mark symbol  within the field.  There is additional space to enter multiple preparers and translators or enter information on the form that employers have traditionally been forced to write in the margins.

USCIS also proposes separating the much lengthier instructions (as compared to the current version) for completing the Form I-9.  Employers are still required to present the instructions to the employee completing the form.  Click here to download and view the proposed new instructions.

The proposed instructions include a widely expanded section on preparers and translators.  Curiously and without any further explanation, the proposed new instructions have a warning: “If you serve as a preparer or translator and fail to sign your name in this field, you may be subject to criminal prosecution.”  In the current Handbook for Employers on Completing Form I-9s and the current Form I-9 version, there is no such reference or warning.  This sentence will likely receive several comments from the public seeking further explanation.

On a more technical level, it will be interesting to see what becomes of the use of  abbreviations on the Form I-9.  The current Handbook for Employers on Completing Form I-9s currently states that “[y]ou may use common abbreviations to document the document title or issuing authority, e.g., DL for driver’s license and SSA for Social Security Administration.”  However, the new proposed instructions note that the drop-down lists include “the universally used abbreviations” and specifies what to enter on the form.  Here are two excerpted examples of the chart that show USCIS might be taking a new approach to abbreviations:

The public may provide comments on any of the proposed changes for 60 days, or until January 25, 2016, through http://www.regulations.gov/.  If you have questions about these changes, McGuireWoods has attorneys with experience and skills in advising on I-9 compliance and defending companies facing notices of inspection and government investigations.