New "Smart" Form I-9 Goes Into Effect January 22, 2017

By Patrick D. Lawler and J. Travis Hockaday

Beginning January 22, 2017, employers will be required to use a new version of Form I-9 to verify the identity and employment authorization of their workforce. The new version includes a number of substantive changes, as well as “smart” features, which U.S. Citizenship and Immigration Services (USCIS) believes will make it easier for employers who want to complete the form on a computer.

Established by the Immigration Reform and Control Act of 1984 (IRCA), the Form I-9 must be completed by all employees, both citizens and non-citizens, to attest to their employment authorization. Employers are not required to complete I-9 forms for unpaid volunteers or contractors. Failing to complete and retain a Form I-9 for each employee may subject an employer to civil fines, criminal penalties and debarment from government contracts. 

Employers must cease use of the current I-9 form, first implemented in 2013, by January 21, 2017. After that date, employers must use the updated version which contains several fairly significant departures from previous iterations of the form.

USCIS believes the new “smart” form will help employers reduce errors (and, in turn, reduce penalties for employers) and enhance electronic completion. Among the most notable changes and “smart” features are: 

• Specific instructions for each field, with the instructions separated from the actual form (in line with other USCIS forms).
• Clarification of the “other names used” field to request only “other last names used,” which may help protect the privacy of transgender and other individuals who may have changed their first names. 
• Additional information for translators and preparers and the option to select multiple preparers and/or translators. If multiple preparers and/or translators assisted the employee in completing the form, each must complete this section.  
• A new “Citizenship/Immigration Status” field which requires the employer to note whether or not the employee attested to being a U.S. citizen in the first section of the form.
• A specified area for employers to enter additional information that employers are currently required to notate in the margins, such as Temporary Protected Status and Optional Practical Training extensions.
• Changes to the date on all “signature” fields to “Today’s Date.” Employers and employees should not “backdate” these fields, as the instructions emphasize.
• Validations and prompts to ensure information is entered correctly and completely, including drop-down lists and calendars to assist in inserting dates, and pre-filled responses based on information provided elsewhere in the form.
• An option to clear the form and start over.
• Automatic generation of “quick response” or “QR” codes when an employer prints a completed form. These “QR” codes assist USCIS auditors in quickly assessing the forms.

Users who wish to complete the form electronically before printing and signing must have downloaded the latest version of Adobe Reader. Employers should be aware that the updated Form I-9 is not an “electronic” I-9 (as defined under Department of Homeland Security regulations). Unless employers are using compliant electronic systems for I-9 completion and retention, they still must print the forms for employees to physically sign and date, and must retain the forms as required by applicable regulations. 

The updated “smart” Form I-9, and instructions, can be accessed here. This Form I-9 expires on August 31, 2019.

Employers should carefully review the new form and instructions, and prepare to begin using the new form by January 22, 2017.

If you have any questions about employee authorization obligations, please contact the Smith Anderson lawyer with whom you normally work.