At the end of January the Department of Homeland Security (DHS) published a final rule establishing the newest version of Form I-9 for employment eligibility verification. While two new countries were added to the online version of the form, the only changes of any significance were made in the instructions. The changes to the form itself affected only the online version of the form and are exclusively the result of two countries recently renaming themselves (Eswatini and North Macedonia).

Two changes were made to the instructions that are worth noting for employers. First, in Section 2 employers are instructed to leave blank any lines not used to record information from identification provided by the employee rather than writing “N/A” in those sections. It is worth reminding the person in the organization responsible for I-9s to stop writing “N/A” as it could potentially lead to a small fine in an audit.

Second, and most significantly, the language in the instructions addressing how Section 2 is completed. Section 2 is completed by the “employer or authorized representative” and the press release from DHS claims a clarification of who may be an “authorized representative.” A review of the actual changes on the form reveal no such clarification, but do show a reminder to the ultimate responsible party:

“An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated on your behalf.”

In other words, an employer can designate anyone they like to complete their section of the form, but remain ultimately liable for ANY violation whether technical or substantive. None of these changes institute new policy, but do serve as a not-so-gentle reminder for employers.

The new forms are available now at https://www.uscis.gov/i-9. Employers may continue to use the current form until April 30, 2020. Regardless of the forms used, employers should take great care in designating a third party to complete these forms as DHS has made clear where the ultimate responsibility flows.