Dubberly – New I-9 Form March 18, 2013

Nexsen Pruet, LLC
March 18, 2013
 
On March 8, 2013, U.S. Citizen and Immigration Services (USCIS) published a new two-page version of Form I-9, together with six pages ofinstructions.  The new form will be required for use by all employersbeginning May 7, 2013.  Until May 7, employers may continue to use theversions dated 08/07/09 and 02/02/09.  However, employers may also begin using the new form now.
 
Employers do not need to complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file unlessreverification is necessary. While the new form is available in fillable Adobe format, to avoid allegations the employer (or someone else)completed Section 1, for now employers are encouraged to print the newform and have it completed it by hand.  In some jurisdictions,Immigration and Customs Enforcement (ICE) may consider an Adobe-filledForm I-9 to be an “Electronic I-9,” which would bring into playadditional regulations concerning the creation and storage of Electronic I-9s.
 
Listed below are some of the notable features of the revised Form I-9.

Section 1
 

• Older versions of the form included a “Maiden Name” field that hasnow been changed to “Other Names Used.”  Additionally, two new fieldsnow appear: email address and telephone number.  While the form does not indicate this, these fields are optional.

• Providing a Social Security number in Section 1 remains optional,unless the employer participates in E-Verify; E-Verify is mandatory inSouth Carolina.

• All dates on the new Form I-9 should be in mm/dd/yyyy format.  Insome ICE jurisdictions, failure to use the correct date format may beconsidered a technical/procedural error.

• For an alien authorized to work (the fourth attestation box), thenew form requires the worker to either provide an A Number or a FormI-94 admission number.  Form I-94 is provided to foreign workers byeither Customs and Border Protection (CPB) at the time of entry or byUSCIS; it is usually kept by the worker in his or her passport.  If theForm I-94 was issued by CPB (and only by the CPB, not USCIS), the worker must also write the foreign passport number and the country ofissuance.  If Form I-94 was provided by USCIS or if the worker was notissued a Form I-94, the worker should write “N/A” in the spaceprovided.  USCIS has indicated this information is requested to provide a more accurate match for E-Verify purposes.

Section 2

• Section 2 at the top of the second page begins with a field for the employer to write the employee’s full name provided in Section 1.  To helpprevent the two pages from becoming separated, it is a good practice toprint the form front and back.

• Additional space is included in List A. The additional space can behelpful in the event more room is necessary, but it can also give theincorrect impression that more than one List A document is necessary.

• The employer certifications are now enumerated.

 Inaddition, the new Form I-9 contains two spaces for a “3-D Barcode.”  For now, this space is a placeholder for use in the future.  USCIS hasindicated it is developing an “enhanced Form I-9,” presumably to becompleted online, that will capture the information presented by theemployee and the employer and create a barcode in these spaces.  USCIShas also separately announced that changes to the E-Verify memorandum of understanding are being considered. There is no way at present todetermine if there will be any ties between an enhanced Form I-9 andE-Verify, but it certainly seems a possibility.
 
The release of the new Form I-9 comes at a time when there isconsiderable discussion in Congress regarding a federal mandate torequire use of E-Verify by more employers. Nearly half the statesrequire at least some employers to use E-Verify, and CPB is consideringconverting to paperless I-9s.  Overall, the changes to Form I-9 and itsexpanded instructions should be seen as an evolving process that isintended to help lessen some of the confusion that has arisen in thecompletion of the form, while suggesting additional changes may be onthe way for employers.

David Dubberly and David Garrett are attorneys with the Nexsen Pruet Employment and Labor Law Group.  They can be reached at [email protected] and [email protected].