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New I-9 Form Version Has Been Released

The U.S. Citizenship and Immigration Services (USCIS) has released the new version of the I-9 Employment Eligibility Verification form. The new form version (dated 11/14/2016) becomes mandatory on January 22, 2017. Prior to that date, employers may use the prior version (dated 03/08/13) or the new version.

What are the changes between the new form versions and the previous one?

Employers who choose to print a blank Form I-9 and complete it by hand instead of electronically will see minimal changes. However, employers who choose to digitally fill out the form directly onto the PDF file accessible through the USCIS website will see considerable changes.

The following is a non-exhaustive list of notable changes for all employers, whether choosing to print and fill out the form by hand or choosing to fill out electronically: 

  • The digital form version has four (4) pages, with Sections 2 and 3 appearing on separate pages instead of the same page. However, when printed, the form is programmed to consolidate Sections 2 and 3 onto one page, so the form will ultimately print as a 3-page document, not as a 4-page document as it appears on the computer;

  • Section 2 has a new “Additional Information” box that allows the employer to write/type information such as E-Verify case number (if enrolled in E-Verify), dates of hire and separation and retention period, and any other information that is pertinent but not already embedded in the form options;

  • The instructions are now provided on the website separately from the actual form, as opposed to being part of the form as was the case before. Also, the instructions to the new I-9 form version are 15-pages long, as opposed to 6-pages long as was the case with the prior version;

  • The new form has an additional Supplement that is provided as a different file on the website and that includes additional Section 1, Preparer and/or Translator fields in the event there are more than one individual assisting the employee fill out Section 1.

Employers who choose to fill out the new I-9 form digitally onto the PDF file provided on the USCIS website will see more noticeable changes. The biggest change is the introduction of the “smart” features and drop-down menus. Below is a non-exhaustive list of the most notable “smart” features:

  • An active Button button inside each field that, when clicked, opens an additional box explaining the type of information needed in that particular field;

  • A “Click to Finish” button at the bottom of each page that, when clicked, verifies whether all the required fields were filled out on that particular page and highlights the fields that are incomplete;

  • A drop-down menu for Document Title items in Section 2 that includes the list of acceptable documents for each column;

  • Employee’s name and chosen citizenship/immigration status from Section 1 automatically populates at the top of Page 2;

  • Pop-up error messages when information the employer fills out in Section 2 is incompatible with the information the employee filled out in Section 1 (example: if employee checks that s/he is a U.S. citizen in Section 1 and the employer chooses Permanent Resident Card from the drop-down menu in Section 2, the form should trigger a pop-up error as to the incompatible legal status);

  • The previous 3-D Barcode box has been replaced with a QR Code box that is automatically populated when the filled-out form is printed.

​As always, the new I-9 form version may be found on the USCIS website, free of charge.

Have any legal requirements changed in the completion of Form I-9?

No. Employers have the same rights and responsibilities as before, and they are required to fully complete Form I-9 in a timely manner as provided by law. Employers will still be required to ensure new hires fill out Section 1 no later than the first day of employment, while the employer fills out Section 2 within three days. The employer will also continue to review new employees’ I-9 compliant documents and, where applicable, copy and retain those documents, regardless of whether they choose to fill out the new I-9 form digitally or manually.

Do the new “smart” features verify the accuracy of the information filled out?

In general, no. The new I-9 form version does have some built-in error spotting capabilities, such as the pop-up error message identified above (when information between Sections 1 and 2 is inconsistent), or highlighting boxes that were not completed after pressing the “Click to Finish” button.

However, none of the information filled out is being transmitted to USCIS, the Social Security Administration or any other government agency. The accuracy of the information, verifying that the documents are genuine and reasonably related to the employee, are still the employer’s responsibility. The “smart” features of the new I-9 form version do not verify the employee’s work authorization like the E-Verify system does. Therefore, employers may still be found in violation of I-9 laws and regulations during a government audit, despite having used the digital features of the new form. 

What are the penalties for non-compliance?

The penalties for not complying with I-9 procedures can be monetary fines or criminal prosecution, depending on the severity and frequency of the violation. Pursuant to the Bipartisan Budget Act of 2015, which mandates that all federal agencies adjust their penalties to account for inflation, the U.S. Department of Homeland Security and the U.S. Department of Justice have adopted a new penalty schedule beginning August 1, 2016.

The table below lists the most common types of I-9 violations and the penalties they may trigger, both under the old and the new penalty schedules. The new penalty schedule is to be applied to violations that occurred after November 2, 2015.

Violation Chart

Given the penalties outlined above, the importance of properly and consistently completing Form I-9 cannot be stressed enough. Employers and their HR professionals responsible for the I-9 process are encouraged to take the following basic steps to maximize compliance:

  • Make sure you always use the current version of Form I-9 by checking the USCIS website (ideally, each time you complete a new Form I-9);

  • Review the I-9 form instructions carefully;

  • Review your company’s I-9 practices periodically to ensure they are up-to-date;

  • Review your company’s I-9 records periodically to make sure they are compliant and catch any possible errors early;

  • Attend periodic I-9 trainings or webinars to stay up-to-date on the most recent government audit practices.

We will continue to monitor the introduction and implementation of the new Form I-9 version and the new penalty schedule and we will keep you updated as new information becomes available. In the meantime, please do not hesitate to contact us at rvo@dewittross.com or (608) 252-9291 with any questions regarding the I-9 process.

About the Author

Raluca has assisted numerous clients with immigration matters ranging from family-based and individual immigration applications, to employment related visas and I-9 Employment Eligibility Verification issues. In addition to her immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by state and federal agencies, as well as employment litigation.

Contact Luca by email or by phone at (608) 252-9291.

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