Employers were required to begin using the revised Form I-9 (now dated 11/14/2016) on January 22, 2017. With a new administration in the White House promising to crack down on illegal immigration controls and focus on employer accountability, as well as the increase in potential penalties for hiring people not authorized to work in the U.S., it is important that you use the new form for all new hires and do so correctly. While the core requirements of the form – i.e., the list of documents acceptable to prove identity and work eligibility and the retention requirements – have not changed, there are other significant changes of which you should be aware.

What’s New About the Form I-9?

1. The “Smart” Form

Although employers may continue to print out and fill in a paper copy of the I-9, they now have the option of completing the form online before printing and signing it. The new online version has been dubbed a “smart” I-9 because it now allows users to complete the form in a fillable pdf format, designed to reduce errors and provide guidance to employees and employers while completing the form.

The smart version provides helpful additions, such as prompts to ensure the information is entered correctly. Users will be unable to leave any fields blank; rather, they must enter “N/A” in any field in which they have no information to enter. The smart version provides drop down menus from which options may be selected. Also, a QR code is generated and can be helpful to employers who store records electronically to use the code for record retention and tracking purposes.

Yet, for all the smart version offers, it’s still not perfect. Using it is not a safe-harbor if the employer makes a mistake. For example, the drop-down menu contains a list of valid documents. However, not all acceptable documents are included in the drop-down menu. Therefore, an employer may receive a document that is acceptable, but not listed and may become vulnerable to a discrimination charge if it rejects a valid document. Employers must still be familiar with the permissible documents to stay compliant.

Also, while the smart version leverages technology to supposedly make the process of completing the form simpler for the employer and employee, the employer must still review the documents presented by the employee in person – it’s not acceptable to use a webcam or some remote technology. Simply put, the smart version may make the process easier, depending on the employer’s onboarding process, but it will not provide all the information the employer needs nor will it replace the need for face to face contact between the employer and employee.

1. Other Changes

Other changes common to the “smart” form and the paper form include:

• Employees are now asked to provide “other last names used” rather than “other names used.” Nicknames are no longer required on the new form.
• All sections where a signature is required now read “today’s date” rather than “date.” It is important to always current date the form, both at the time of signing and/or at the time of correction. Never backdate an I-9.
• New hires who attest to being foreign nationals authorized to work in the U.S. can now provide either an alien registration number, Form I-94 number, or foreign passport number. They no longer have to provide both an I-94 number and foreign passport number.
• The employee now must affirmatively check a box indicating that they did not use a preparer or translator if that is the case.
• If more than one preparer or translator is used, the new form now offers additional space to list the preparers’ or translators’ information.
• Employers need no longer scribble in the margins if they want to include additional information pertaining to the I-9. Section 2 now contains a large box for additional information, such as a foreign national’s Temporary Protected Status, an E-Verify case number (where applicable), employee termination date, or form retention dates. Just be careful to limit the comments to information pertaining to the I-9 or E-verify because anything written on the form could be fair game if the form is ever the subject of a government investigation. If you’re not sure whether to include it, check with legal counsel.

When Should Employers Use the New Form I-9?

Employers should use the new Form I-9 when onboarding new employees. I-9’s for new employees must be completed within three days of hiring.  You do not need to use the new I-9 on existing employees.

Where Can Employers Find the New Form I-9?

Both the “smart” version and the paper version of the Form I-9 can be found at https://www.uscis.gov/i-9. Additionally, USCIS issued a revised version of its Handbook for Employers that guides employers through the Form I-9 provisions and can be found at https://www.uscis.gov/i-9-central/about-form-i-9.

How Should Employers Complete the New Form I-9?

Employers may choose whether to use the “smart” version of the I-9 form or the paper version depending on their onboarding process. Employers may complete the new I-9 form in the following ways:

• Print it and fill it out manually.
• Fill it out electronically, then print and sign it. Note: even if you complete the “smart” version online, you must still print and sign it because the new online version does not adhere to electronic signature requirements. This is essentially still a paper form.
• Use an electronic I-9 vendor. If you are already using an electronic I-9 vendor, the vendor should have updated the form. However, employers should compare the electronic product provided by their vendor against the fields and requirements of the new I-9 version to ensure the vendor is collecting all the necessary information. If you are looking for an electronic I-9 vendor, the vendor should be carefully vetted with the assistance of experienced immigration counsel. We will be happy to provide you with a reference.

What are the Consequences of Not Using the New Form I-9?

Civil penalties assessed after August 1, 2016 for violations related to the unlawful employment of immigrant workers, to I-9 form violations, and immigration-related discriminatory employment practices have significantly increased. Indeed, the minimum penalty imposed by the Justice Department for the unlawful employment of immigrant workers rose, per employee from $375 to $539 while the maximum penalty rose from $3,200 to $4,313. The minimum penalty imposed for mistakes or omissions on the Form I-9 rose, again per infraction, from $110 to $216, with the maximum penalty rising from $1,100 to $2,156. An initial violation for discriminating against immigrant workers increased from $375 to $445, and the maximum penalty rose from $3,200 to $3,563 per infraction.   This would add up quickly.

Employers should review their processes to make sure they are using the New Form I-9 as required. It’s up to the employer to decide whether to use the “smart” version or the paper version. What’s important is that you are correctly using the new Form I-9. As demonstrated above, non-compliance is costly. If you have any questions regarding the new I-9 form itself; if you’d like a referral to an attorney who specializes in immigration compliance; or you’d like to know what information you should or should not include in the new Form I-9, please call us. As always, we’re happy to help.