By John Fay
On August 1, 2023, the US Citizenship and Immigration Services (USCIS) unveiled a revamped version of the Form I-9 – a ubiquitous document in employee onboarding which must be completed for all newly hired employees in the United States. While a government form update may seem like a trivial matter, the Form I-9 has very specific rules and procedures which must be followed to a tee to avoid potential penalties in the event of an audit. Here is some key information you will want to know:
The USCIS published the new Form I-9 edition and the accompanying instructions on their website, which can be directly accessed here: https://www.uscis.gov/i-9. This page also includes links to download the new Form I-9 and instructions in Spanish, but it’s important to remember that only employers located in Puerto Rico may complete the Spanish-language version. Despite this restriction, you may use the Spanish-language form and instructions as a translation tool if needed.
While the new Form I-9 is available now, you may continue using the prior version (with a revision date of 10/21/2019), through October 31, 2023. This “grace period” is welcome news as it provides much-needed time to review the new form, study the changes, and plan for how you’re going to roll it out and train everyone at your organization.
However, starting November 1, 2023, you must use the new form, which bears a revision date of 08/01/2023, for all new hires and reverifications moving forward.
And if you are an Equifax client, this new Form I-9 will be available on your I-9 system prior to November 1, 2023.
HR practitioners may recall that for many years, the Form I-9 was a one-page document until the USCIS expanded both the form (and instructions) in 2013 to include additional space and entry fields. With this latest Form I-9 release, USCIS is returning to a one-page format (for most new hire scenarios) in an effort to help streamline the I-9 verification process and reduce employer and employee burden – particularly for those employers completing the form on paper.
In doing so, the agency made several formatting and field-level adjustments to both Sections 1 and 2 and merged some fields when possible. More noticeably, they moved the Section 1 Preparer/Translator Certification area to a separate, standalone Supplement A and moved the Section 3 Reverification and Rehire area to a separate, standalone Supplement B, each of which includes multiple subsections that can be used as needed. USCIS also added “Additional Information” boxes to Supplement B, to enable employers to add special comments for certain reverification scenarios (e.g., in the case of EAD auto-extensions, when employers are instructed to write “EAD Ext” in the Additional Information field).
As previously announced, the Department of Homeland Security (“DHS”) has introduced a new optional “alternative procedure” for virtually examining I-9 documents that can be used by qualifying employers who participate in E-Verify, take additional training, retain all document copies, and otherwise comply with DHS rules. To support that new option, USCIS has added a checkbox in the Additional Information fields of both Section 2 and Supplement B of the new Form I-9, which eligible employers must check if the employee's Form I–9 documentation was examined under a DHS-authorized alternative procedure rather than via physical examination.
USCIS also made an important (and welcomed) change relating to so-called “blank fields” on the form. Specifically, the new Form I-9 instructions note that employers must “leave a field blank if it does not apply and allow employees to leave fields blank in Section 1, where appropriate.” Elsewhere in the instructions, USCIS writes that “[a]ll employees must provide their current legal name, complete address, and date of birth. If other fields do not apply, leave them blank.”
This new flexible data entry policy changes the prior Form I-9 rule that required employees and employers to write “N/A” in most blank spaces, even in fields (such as the email address and telephone number), which are optional for the employee to complete. Employers (especially those completing the form on paper) would often discover these innocent mistakes after the fact and spend precious time making corrections.
In addition to the form changes discussed above, the USCIS also made a few important tweaks to the instructions on the Lists of Acceptable Documents (LOAD) page. Specifically, at the top of the page, USCIS changed the instructions to read that “All documents containing an expiration date must be unexpired.” They also added “Documents extended by the issuing authority are considered unexpired.”
Previously, the page simply indicated “All documents must be expired” – an instruction which can be confusing since there are several instances when an employer can accept an expired document that has been extended by virtue of an automatic extension, federal register notice, or other DHS-issued document or temporary policy (e.g., the previous COVID-19 allowance for List B documents). USCIS also included a link to a new page on I-9 central which outlines a variety of employment authorization extension scenarios.
In addition, the List C(7) “catch-all” employment authorization document now references Section 7 of the M-274 Handbook for Employers which covers I-9 document scenarios for a wide range of non-citizens. They also reference Section 13, which provides an overview of the various List A, B, and C documents that are acceptable.
Lastly, the LOAD now includes the list of acceptable receipts that may be presented by an employee for a temporary period of time in lieu of an acceptable document.
As noted by USCIS, their recent Form I-9 update contains “myriad” revisions to the form and its instructions. The entire list, including the changes discussed above, can be viewed in this USCIS Fact Sheet here.
Though many of the changes to the Form I-9 are much more structural than substantive, they are no less important to absorb and understand. To help you stay on top of the updates to the Form I-9 process, we recently hosted a webinar where we discussed these form changes, the new virtual inspection option, and their possible ramifications.
Click the link below to view the webinar on demand:
The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel. Equifax Workforce Solutions provides services that can help employers reduce their compliance risks. Details on our provision of these services and related support will be contained in your services agreement. Links to sources may be to third party sites. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.