Frequently Asked Questions About the New(er) Form I-9

During the course of providing HR consulting services to clients, my colleagues and I have received a number of questions about the newest version of the Form I-9. In case you weren’t aware, the Form I-9 has received yet another set of updates, with the newly issued form required to be used by employers no later than September 18^th, 2017.

The good news for employers is that there are not a new set of rules from which they need to operate regarding the major requirements that are already in place. While I want to underscore that there have not been major changes to the form or to any related employer obligations, I do want to provide a quick overview of what has and has not changed, because there have been updates.

Form I-9 Review: What Has Changed?

In the words of USCIS, the ‘most significant change is that we added the newest version of the Department of State, certificate of birth abroad to the Lists of Acceptable Documents and combined all the birth abroad documents in List C#2 which shifted the rest of the List C documents up in the list. All of the documents were renumbered in List C, except the Social Security card.’

If anything, this change is a benefit to employers since the form now correctly refers to the Department of State certificate of birth abroad. The referenced renumbering of the acceptable List C documents does not have a material impact on administration, as the specific number of the documents was never required to be listed by employers.

In addition to the change listed above, the new form includes updated language regarding when Section 1 of the Form I-9 must be completed. The guidance on the form now reads: ‘Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, but not before accepting a job offer.’

Per USCIS, they updated the previous phrasing so that the instructions for the Form I-9 align with the actual language in the Form I-9. Despite this update, the employer’s obligations in regards to the rules haven’t changed.

What Has Not Changed with Form I-9?

As mentioned above, the major employer responsibilities regarding the Form I-9 have not changed. I’ve listed a quick run-down of some of these major responsibilities that are not impacted by the new form:

• Employers required to use E-verify must follow the same process in E-verify
• Employers must have the applicable employee complete Section 1 no later than the first day of employment, and Section 2 must be completed within 3 business days of the employee's first day of employment
• Employers are able to use permissible electronic signatures and are able to store I-9s electronically
• The most up to date form will always be on the USCIS website if you’re confused about which form to use.
  • It’s worth noting that some browsers do not properly preview the newer I-9 forms. If you are not able to view the new Form I-9 when you open it through your browser, try downloading the form onto your desktop and then open the form.
• The most up to date form should be used for re-verifications, even if an older form was used for the prior employment eligibility verifications.
• The requirements regarding how to verify eligibility for employment for remote employees have not changed, and a colleague of mine has written a great article about how organizations can conduct the I-9 process for remote employees.

Legal Requirements with Form I-9 Process

The penalties for non-compliance can be significant, and the requirements of employers in the I-9 process go far beyond just using the correct form. It’s important to make sure that all of your internal resources who participate in the administration of the I-9 and employment eligibility verification process are trained and understand the legal requirements and associated liabilities to the organization.