DHS Previews Big Changes to New Form I-9

Current version of the form expires Oct. 31

Roy Maurer By Roy Maurer April 5, 2022
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​The Form I-9 is getting another makeover. The ubiquitous HR onboarding document used to record employment eligibility verification, as required by the federal government, is slated to undergo a significant structural overhaul by the time the current form expires on Oct. 31.

"Used by all employers, the Form I-9 has always had many traps for the unwary," said Amy Peck, an attorney in the Omaha, Neb., office of Jackson Lewis. "DHS [The Department of Homeland Security], with its proposed changes, is trying to simplify and clarify things."

Peck listed the department's proposed changes, including:

  • Compressing Sections 1 and 2 from two pages to one page to reduce paper use.
  • Moving Section 3 to a separate Reverification and Rehire Supplement, making it "a stand-alone section, which only is accessed if needed," she said.
  • Updating the List of Acceptable Documents to include a link to List C documents (on the U.S. Citizenship and Immigration Services website) issued by DHS. Some List C documents were unlisted, so this will be a helpful resource, Peck said.
  • Reducing and simplifying the form's instructions from 15 pages to 7 pages.
  • Removing electronic PDF enhancements to ensure that the form can be completed on all electronic devices. "Problems that some users may have had due to software issues may be reduced," Peck said.

John Fay, an immigration attorney and president of the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration case management services, noted that in addition to the structural changes, there were other interesting, proposed modifications to the form, including eliminating "the N/A requirement."

He explained that the newly proposed instructions allow HR and new hires to leave fields blank if they do not apply.

"This new flexible data entry policy represents an important and welcomed change to the current Form I-9 rule that requires employees and employers to write 'N/A' all over the form, even in fields which are optional for the individual to complete," Fay said. "Employers, especially those completing the form on paper, often discover these innocent mistakes after the fact and spend precious time making needless corrections."

He added that even though Immigration and Customs Enforcement stated it will generally not assess a penalty for a missing "N/A," some employers have been fined for the oversight.

Other minor changes to the proposed form include the condensing of the A-number, I-94 and Foreign Passport boxes into one box, and the removal of the QR code box. The "smart" online version of the Form I-9 automatically generated a QR code meant to assist with record retention and tracking.

Fay said DHS is also reminding employers that they should use the Additional Information field to record any additional information required to complete Section 2, or any updates that are necessary once Section 2 is complete. "This includes extensions of employment authorization or a document's expiration date, replacement document information if a receipt was previously presented, or additional documentation that may be presented by certain employees with temporary work visas."

DHS now specifically notes that employers should "initial and date each additional notation," he said.

Be Part of the Process

Fay said that employers should take advantage of the opportunity to submit public comment by May 31. "In years past, the agency has carefully reviewed these comments and implemented many suggestions based on feedback received out in the field," he said. "At the very least, it provides employers with a vehicle to gripe about a particular aspect of the form and make suggestions for improving the overall process and workflow."

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