The Form I-9 is on the verge of the first substantive change in 25 years, according to Mary Pivec, an immigration attorney with Williams Mullen in Washington, D.C., but its release date is a topic of some debate.
Kevin Lashus, an immigration attorney with Jackson Lewis in Austin, Texas, told SHRM Online that he is “guessing that the form will be finalized by the end of the calendar year and will be released for use at the beginning of January 2013.”
On the other hand, Bonnie Gibson, an immigration attorney with Fragomen in Phoenix, said “it does not appear likely that the new form will become final before year’s end,” given the more than 6,200 comments the U.S. Citizenship and Immigration Services (USCIS) had received as of Aug. 22, 2012.
The comment period on the March 27, 2012, proposed changes to the I-9 has been extended until Oct. 15, 2012, noted Lynn Shotwell, executive director of the SHRM-affiliated American Council on International Personnel.
Gibson added that “Some employer advocacy groups have asked for meaningful advance notice of the final version as well as for a phase-in period where employers can use either form.” The U.S. Chamber of Commerce has requested that, if approved, implementation of the new Form I-9 be delayed for 180 days to allow for transition of company procedures from a one-page to a two-page document.
Proposed Form Criticized
Employers will have to make quick adjustments if the USCIS’s proposed changes are in the final form, Pivec noted. “The complete redesign of the form poses significant cost burdens for I-9 vendors and their clients who must invest in software changes that are likely to impact the whole of an integrated HRIS platform,” she said.
In its May 29, 2012, comments on the proposed changes, the American Immigration Lawyers Association (AILA) said, “If the proposed changes are implemented, the I-9 will expand from one page to two pages. In addition, the employer will be required to provide employees with six pages of instructions (up from three) along with the one-page list of acceptable documents. As a result, the employer’s paperwork, photocopying and retention burden will double, and the potential for loss or separation of the required paperwork will increase.”
It criticized the PDF version of the proposed I-9 for not using “readily available technology to help employers and employees minimize the most common, avoidable I-9 paperwork errors. We urge USCIS to continue to work toward implementation of its plans to release a ‘Smart I-9’ on its website, develop drop-down menu features for other portions of the I-9, such as in the document verification section, and provide automatic prompts to alert employers and employees when required fields have not been completed.”
Gibson remarked, “I know that many employers would like to see the form remain a single page.” She added that, “The structural and instructional improvements reflected in the revised version are not consistent with a one-page document. The lengthening of the form in fact shows why an all-electronic I-9 system is preferable to paper.” Gibson hopes that the USCIS makes a number of changes from its proposed form, including:
Removal of the employee e-mail and telephone fields.
Better incorporation of E-Verify requirements into the I-9 instructions, as more employers enroll in E-Verify.
Better explanation of why USCIS has included bar code information on the revised form.
Clarification of the types of List C documents that are considered to be employment authorization documents from the U.S. Department of Homeland Security.
Jacqueline Longnecker, president of Employment Verification Resources Inc. in Reno, Nev., noted that the Section 1 reference to the U.S. Social Security number is inconsistent with the new document title found in the list of acceptable documents described as Social Security account number card. This is inconsistent and “it is unclear whether employers may still use the title Social Security card,” she remarked.
“More importantly, the biggest concern will be the effect the electronic I-94 will have on employees being able to obtain a Social Security card number within a reasonable period of time so that E-Verify submissions can be processed timely. The same will hold true in certain states for obtaining a driver's license or other acceptable documents listed on the Form I-9,” Longnecker added.
Pivec criticized the proposed form as requiring “additional, confusing new immigration-related identification numbers for “aliens authorized to work”—such as ‘the USCIS number’—at a time when the commonly used I-94 is being phased out.”
Shotwell explained that the U.S. Customs and Border Protection agency is automating Form I-94, which is a record of an immigrant’s arrival and departure. As automation is implemented, “it is raising questions for employers about how to document valid work authorization,” she noted.
AILA also expressed concern about the USCIS number in its comments to the agency, stating, “The proposed I-9 and instructions refer to the ‘USCIS number’ without explaining what this is.” It added, “We are aware of the Department of Homeland Security’s upcoming plans to implement a paperless, electronic I-94.”
But AILA added, “Given that this process has not yet been implemented or disseminated to the public, this field is guaranteed to result in great confusion among employers and employees, which will lead to data entry errors, false E-Verify tentative nonconfirmations and possible civil money penalties.”
Allen Smith, J.D., is manager, workplace law content, for SHRM.