Immigration changes are in store for employers this year. In addition to a new president with aggressive immigration enforcement plans, employers will begin using a new Form I-9.
The U.S. Citizenship and Immigration Services (USCIS) recently issued its new Form I-9 version, replacing the old version that expired in early 2016. The new version of the Form I-9 (dated Nov. 14, 2016) must be used by all employers for all new hires beginning Jan. 22, 2017. Either version of the form can be used before that time.
USCIS issued the newly designed Form I-9 and revised its instructions to help employers minimize errors in completing the form, to gather new types of information and to aid the government in performing Form I-9 audits. This new “smart” electronic version of the form includes helpful real-time error-checking features such as on-screen instructions for each form field. Employers are not required to fill out the form electronically; employers may still print out and handwrite their Forms I-9.
Notable changes to the new Form I-9 include the following:
- The form now asks for “other last names used” rather than “other names used.” This change seeks to avoid potential discrimination issues and to protect the privacy of transgender individuals who have changed their first names.
- The form, when completed electronically, now contains drop-down boxes and calendars.
- The new Preparer and/or Translator Certification requires employees to state whether they used a preparer or translator to assist in completing Section 1. A new Form I-9 Supplement is also available, providing additional certification areas for multiple preparers and/or translators.
- The new form includes a dedicated area for including additional information so it will no longer be necessary to write certain information (such as that related to H-1B extensions) in the margin of the form.
- For electronically completed forms, a matrix barcode will now appear when the forms are printed, allowing for streamlined enforcement audits.
- “Aliens authorized to work” no longer need to provide both their Form I-94 number and foreign passport information in Section 1.
- The form contains a new “Citizenship/Immigration Status” field at the top of Section 2.
- USCIS also released a new separate 15-page set of instructions. These instructions must be available to the employee but need not be attached or stored with the completed Form I-9.
Although new instructions are available for the new Form I-9, the Handbook for Employers has not yet been updated. USCIS has indicated the handbook will be updated soon.
The essential rules for Form I-9 completion continue to apply. Specifically, employers must complete a Form I-9 for all new employees, including U.S. citizens and permanent residents. Employers need not complete a new Form I-9 for current employees for whom a properly completed Form I-9 already exists, unless re-verification applies. When completing a Form I-9, employers may accept only original documents that “reasonably appear genuine on their face” and must review this documentation with the employee physically present.
Although existing employees will not need to complete the new Form I-9 version, this is an excellent time for employers to review their existing Form I-9 procedures and paperwork.
Last year, the U.S. Department of Justice issued new rules that increase penalties against employers for various immigration-related violations including Form I-9 mistakes. Given the significant increase in penalties for immigration-related violations and potential for increased immigration enforcement under President-elect Donald Trump, employers should use particular care when dealing with I-9 form completion and other immigration-related employment processes and practices.
January is also a good time for employers to perform an internal Form I-9 audit to ensure that their organizations have properly completed Forms I-9 for all employees. Employers can engage external professionals to review and audit Form I-9 files and are advised to do so if they have previously been audited, fined or misplaced forms. Helpful tips on Form I-9 completion including guidelines on performing a Form I-9 audit can be found on the USCIS website.
The new Form I-9 is also available on the USCIS website. Employers should note that although a Spanish-language version of the new Form I-9 is available, this version may be used only in Puerto Rico. 
Kelly M. Fortier is an attorney at Michael Best & Friedrich LLP.
