New Form I-9 released: Make the switch by January 22

Posted December 8, 2016

By Katie Loehrke, PHR, editor, J. J. Keller & Associates, Inc.

On November 14, the United States Citizenship and Immigration Services (USCIS) published a new “smart” Form I-9 that employers must begin using by January 22. Until that date, employers may continue to use the version that expired on March 31, 2016.

The new Form I-9 bears a revised date of November 14, 2016, and an expiration date of August 31, 2019.

What’s new?

The new form (available in a pdf) is said to be “smart,” as it attempts to prevent employees and employers alike from making errors through data validation and on-screen help. Other changes include:

  • Replacement of the “Other Names Used (if any)” field with the “Other Last Names Used (if any)” field.
  • Drop-down lists in Section 2 (under Lists A, B, and C), including the appropriate acceptable documents and issuing authorities.
  • Space to record more than one preparer/translator. For employers completing a paper version of the I-9, this comes in the form of a supplementary page that can be printed and attached to the I-9. For employers completing the USCIS’s smart form electronically, the additional spaces will appear when the box has been selected, indicating that more than one preparer/translator was used.
  • Space in Section 2 to document additional information that might be required, such as information on an individual’s temporary protected status and the employee’s E-Verify case number.
  • A “Citizenship/Immigration Status” field at the top of Section 2. This field is to be completed only if the employer is completing this section electronically. The field may be left blank if the employer completes a printed version of the form.
  • Separate instructions. To create consistency with other USCIS forms, the agency has separated the I-9 instructions from the form itself. However, the instructions in their entirety – now 15 pages (up from the previous six) – must still be provided to employees who are completing the Form I-9. Employers may provide access to the instructions electronically (even if the employee is completing a paper form) or on paper.

What’s the big deal?

While many employers see the I-9 as a simple form, federal audits have a way of reminding them that it is anything but. According to Sue Kohlwey of the USCIS’s Outreach Branch, 76 percent of paper I-9s contain an error that could result in a fine from Immigration and Customs Enforcement (ICE). Unfortunately for employers, changes to the Form I-9 create even more opportunities for confusion and mistakes.

What’s more, I-9 compliance has been a strong priority under the Obama administration, and President-Elect Donald Trump has repeatedly affirmed his commitment to immigration reform, vowing to increase the number of ICE officers. This could support an increase in worksite inspections by the agency.

Of course, audits can be expensive. Both average and cumulative fines associated with I-9 audits have risen year after year, with more than $100 million imposed on employers since 2009. In 2014 and 2015, employers were fined more than $15 million and $16 million, respectively.

Overall fines will likely continue to rise, particularly since the fines for individual violations have recently gone up. Paperwork errors on the Form I-9 used to cost employers anywhere from $110 to $1,110, but violations occurring after November 2, 2015, cost between $216 and $2,126 per violation.

About the author:

Katie Loehrke

Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr.