Employment Law Update
September 21, 2016
Recently, the United States Citizens and Immigration Service (USCIS) announced it had received approval from the Office of Management and Budget for a proposed new Form I-9. USCIS must publish the revised form no later than Nov. 22, 2016; the new form will be effective Jan. 22, 2017. Until then, the current version (03/08/2013 N) can be used.
About the new Form I-9 for January
Although the new form is not yet available on the USCIS website as of this writing, some specifics are known – including the fact that it will include revisions designed to help employers reduce technical errors. Additionally, USCIS has modified the electronic features for completion of the form on the computer in Adobe pdf from its website as follows:
- Validations on certain fields such as the Social Security number or an expiration date in a List B or C document
- Drop-down lists and calendars
- Instructions for each field are available by clicking a question mark in the field
- Quick Response (QR) bar codes in Sections 1, 2, and 3 that are generated once the form is printed
- Buttons at the top of the page to print the form, access instructions, and clear the form to start a new form
- Although the document appears on the computer screen as three pages, it prints out as two
Employers can still choose to print and complete the new Form I-9 by hand, but that may be temporary. Employers and employees may choose to fill out any or all sections of the form on paper, by using a computer, or a combination of both. The Form I-9 accessed from the USCIS website is specifically not considered to be an “electronic Form I-9” under previous Department of Homeland Security regulations. Regardless of the method of completing the form, it must be signed and dated after printing a hard copy. It may not be saved electronically (unless the form was created and/or being stored electronically using a compliant electronic Form I-9 system).
- The Other Names Used (ONU) field is now Other Last Names Used. This is a welcome change that eliminates the uncertainty in the previous ONU box, and it could reduce possible discrimination issues (such as if a transgendered individual changed their first name).
- If an employee checked the Alien Authorized to Work Until attestation box, he or she is no longer required to provide both the Form I-94 and the Foreign Passport information.
- In a major change, the new form requires preparer and/or translator certification. An employee must check either that he or she did not use a preparer or translator or that a preparer/translator was used. For employees filling out the form by hand, this may be an issue; it is unclear whether the Adobe version will prevent the employee from not checking this box.
- In another big change, the Top Line (Name line at top of Page 2) now includes “Citizenship/Immigration Status.” This will be a drop-down field, and is a potential problem. It calls for the individual completing the I-9 to make a legal determination that sometimes the government isn’t even able to make correctly. It is unclear what choices may be provided in the drop-down box; hopefully the choices will mimic the Section 1 attestation.
- Drop downs in the second and third document boxes for Document Title and Issuing Authority on List A. The version released in conjunction with the rulemaking doesn’t have similar drop-down boxes for the first List A document and for Lists B and C.
- An “Additional Information” box next to the QR Code. It is unclear what this may be used for; however, it is a convenient place to make written hearsay statements that could be used against employers in an enforcement action.
In addition to those changes, the rulemaking includes revisions to the Form I-9 instructions that revised the abbreviations that are acceptable for use on the new Form I-9. The lists of acceptable abbreviations for Document Titles is extensive.
- List A Documents and Acceptable Abbreviations
- List B Documents and Acceptable Abbreviations
- List C Documents and Acceptable Abbreviations
Note that some of the acceptable Document Title abbreviations are now longer than what most employers currently use now when spelling out document titles. For example, “Permanent Resident Card” is now “Perm. Resident Card (Form I-551)” – a 7 character increase due to the so-called abbreviation.
Employers should use the abbreviations listed. However, other abbreviations may be acceptable, as long as they are “commonly used” (although what is “commonly used” is not specified).
Takeaways for Employers
Here are some of the main points of the new form that employers should consider:
Completing by Hand Rule
Starting with the use of the new Form I-9, if you have a policy that all I-9s must be completed by hand, this policy may need to be revisited. Last week, the U.S. Department of Justice Office of Special Counsel published a rulemaking proposal that, while claiming to codify existing practices, also expands the definition of “document abuse” so far that it that could make rejection of employee-completed Section 1s to be considered a discriminatory employment practice.
You will need to have a mechanism in place to make sure that all Section 1s completed by hand have this box checked, in addition to the other quality control checks already in place.
What’s in the QR Codes? No one is saying. The only time the U.S. government ever sees this form is when there’s an enforcement audit by Immigration and Customs Enforcement. This code could be completely packed with evidence that may not be in the company’s best interests. On the other hand, it may be considered to be a discriminatory act to reject an electronically completed Section 1 prepared by the well-meaning employee.
Office of Special Counsel Rulemaking Changes
There are two changes from OSC that employers should be aware of: a proposed new definition of “discrimination” and revisions in language related to “unfair documentary practices”:
- Discrimination: OISC states, “This proposed definition clarifies that discrimination means the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility.” …. “this definition includes ... the process related to completing the DHS Employment Eligibility Verification Form I-9…”
- Unfair documentary practices: There is a proposed “unfair documentary practices” prong to prohibited unfair immigration-related employment practices. It replaces the familiar “document abuse” of the past, which prohibited requiring more or different documents than presented if the employee presented documents from the list of acceptable documents.
When reading both rulemakings in the entirety, this could reach to an employer’s Completion by Hand Rule.
David J. Garrett’s law practice helps businesses and people get where they need to go. He focuses on immigration-related matters and civil litigation, representing both individuals and companies. David is a member of the Firm's employment and labor and construction practice groups, and leads the firm's immigration practice.