‘Smart’ I-9 Form Comes Up Short

By Allen Smith Jan 20, 2016
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The proposed “smart” I-9 form has a number of features that are leaving immigration experts scratching their heads, as they prepare comments (due Jan. 25) on the recommended changes.

First and foremost, “The ‘smart’ I-9 is not that smart—it will not connect to E-Verify,” said Yova Borovska, an attorney with Buchanan Ingersoll & Rooney in Tampa, Fla.

“In fact, the new I-9 is not even the equivalent of electronic storage,” she added. “It must be printed, manually dated and manually signed.”

“Indeed, the 'print and sign' requirement for the employee, one or more preparer/translators, the employer representative who completes Section 2 and the employer representative who completes Section 3 at the time of update or rehire violates the intent of the Paperwork Reduction Act,” said Mary Pivec, an attorney with Pivec & Associates in Arlington, Va. She predicted that the mandate “inevitably will contribute to violations of the I-9 retention requirements when sections of an employee's I-9 are misplaced or misfiled.”

Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management, said, “Employers need a fully integrated employment verification system in which employment verification need not be done twice—electronically and on paper. The current system is redundant and requires unnecessary time for employers.”

Some say the form is an example of how the government lags the private sector in finding effective solutions. “Once again, the private sector is ahead of the government here,” said Peter Asaad, an attorney with Immigration Solutions Group in Washington, D.C. “Private-sector companies have created smart I-9 forms with E-Verify integrated at the push of a button.”

Borovska added that it is “unclear how the smart I-9 would be integrated with HR software already being used by large employers. It might actually make it more complicated for employers who would need to take an extra step to complete the smart I-9.”

Pivec said that employers using human resource information systems/I-9 software “will not be able to use that software to prepopulate any information requested on the USCIS smart I-9 form.” And she predicted that employers will have to “expend aditional time and labor to type in information from I-9 forms to the E-Verify data entry system.”

Storch also was concerned by the U.S. Citizenship and Immigration Services’ (USCIS’) expansion of the form’s instructions from six pages to 15. He called this “a troubling trend, whereby USCIS is continually expanding the instructions for its forms unnecessarily.”

Asaad noted that the smart I-9 form would be the 13th version of the employment eligibility verification form, which resulted from the Immigration Reform and Control Act of 1986.

“The question,” he said, “is will this document be a form that gets live updates with respect to hover texts, helper texts, drop-down menus and error messages?”

Useful Features

The feedback wasn’t all bad, however. The validation on the form of the correct number of Social Security account digits, limitations on expired documents and drop-down lists of acceptable documents all are useful, said Kevin Lashus, an attorney with Jackson Lewis in Austin, Texas.

Asaad noted that the smart form will eliminate many fines on employers as a result of human error.

Robert Groban Jr., an attorney with Epstein Becker Green in New York City, noted that helpful changes include making sure the employer uses documentation in Section 2 that is consistent with the status the employee checked off in Section 1. For example, the new form will alert the employer to an error if the new hire indicates that he or she is a permanent resident but provides a U.S. passport.

The form could provide alerts in reverse situations as well. Currently, “If the employee selects ‘U.S. citizen’ in error—even an innocent mistake—and the form eventually becomes available to the immigration authorities, the individual could be forever barred from obtaining permanent residence and citizenship,” Borovska said. “This can hopefully be prevented by the new form.” And suppose an individual does not understand that a lawful permanent resident card does not mean citizenship. “The form would presumably alert the employer if the individual enters ‘U.S. citizen’ but presents a lawful permanent resident card instead,” Borovska noted.

However, the form would not be able to catch all errors, she said. For example, “The individual might present a driver’s license and an unrestricted Social Security card, in which case the form would not catch the error.”

“The error checks are helpful,” Storch asserted, “but they are really just a Band-Aid on a bigger problem with the entire employment verification process.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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