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The New I-9 Form: How to Navigate the Long Path to Compliance
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Released in May 2013, the long-anticipated revised version of the Form I-9 has brought several changes to the way employees complete the I-9 process and employers onboard new employees.
The new form was developed by the U.S. Citizen and Immigration Services (USCIS) to address some of the shortcomings and problem areas, incorporate new procedures that further enhance the employee onboarding process, and to provide greater clarity about what is expected from both the employer and the employee.
But while the changes were designed with the employer’s best interests in mind, it’s important for businesses to understand the updated requirements to achieve compliance and avoid putting their organizations at risk for audits and hefty fines.
The revamped Form I-9 includes several changes that facilitate the way employers and employees complete the form, while providing better instructions regarding deadlines.
For example, it now indicates that employees must complete and sign Section 1 no later than their first day of employment but not before accepting a job offer; thus eliminating prior instances of confusion about the proper order for filling out the various fields. In addition, the new form gives greater insight into the types of documentation that can be used to verify an employee’s identity.
While the benefits of these changes are obvious, some other updates have been less apparent. For instance, the form now has optional fields asking for the employee’s email address and phone number. Although this change was met with skepticism at first, the addition of these fields, according to the U.S. Department of Homeland Security (DHS), was meant to make it easier for the employer to get in touch with the employee by providing easy access to their contact information.
At the same time, the inclusion of an employee’s email address is now used by E-Verify to notify the employee if his or her information does not match government databases and instruct them to contact their employer to be referred to the appropriate government agency to correct the data mismatch. This also allows USCIS to send emails directly to the employee when E-Verify issues a tentative Nonconfirmation (TNC) response, which indicates a mismatch between the information on Form I-9 and government database.
Homeland Security believes that a better informed employee will help ensure the employer properly processes the TNC case by privately discussing the TNC with the employee and giving the employee the opportunity to correct the mismatch rather than simply terminating the employee.
Despite the numerous positive changes, a few of these changes have led to concern among employers because they increase the likelihood of unintended errors and, in turn, non-compliance.
One example is the change to the Social Security number field, which has transitioned from one large space to nine individual slots. The concern is that employees who enter their Social Security number wrong may not have enough space to make corrections. In addition, the form now asks for the employee’s “first day of work for pay,” which may cause confusion as the employee might not actually start on that date or the start date may be unknown at the time of hire.
While the form does not specify that the employer must update the employment date on the form if it changes, USCIS I-9 Central advises, “If the employee begins employment on a different date, cross out the expected start date and write in the correct start date. Date and initial the correction.” In all cases, the employee and employer need to be especially vigilant.
Another example is the “Other Names Used” field. An employee without a maiden name or other legal name might think they should leave the space blank. However, the employee is required to enter “N/A” in this field if they have no other names. And, as other optional fields instruct that the employee may enter “N/A”, but is not required to, DHS recommends that “N/A” be entered into any optional field in Section 1.
During my recent session on the I-9 audit process at the SHRM Annual Conference in Chicago, several participants also asked about changes to the “Updating and Reverification” section, which has been renamed “Reverification and Rehires.”
The latest E-Verify documentation, which contains new guidelines indicating that, in certain circumstances, an employee can be rehired using Section 3 of Form I-9 and not be submitted to E-Verify. The removal of “Updating” from this field seems to indicate that all updates and corrections on the form should be done by lining out the incorrect information, entering the correct information, and initialing and dating the change.
It is the employer’s responsibility to ensure that all fields on Form I-9 are completed appropriately. With Form I-9 audits on the rise and new requirements in place, there is greater importance for employers to ensure they and their employees complete the form accurately the first time.
Fortunately, there are several strategies organizations can implement to avoid risk and meet compliance.
First, employers should have a policy manual defining how the Form I-9 and E-Verify, if used, are processed within the organization. Employers should also hold regular training sessions for staff completing Form I-9 and E-Verify, and perform internal audits at least annually to ensure compliance and remediate any errors.
Another key to achieving positive results and minimizing the chance for errors is to automate Form I-9 and E-Verify processes with a robust electronic solution. Those organizations that complete the form on paper are much more likely to make errors, highlighting the need for a consistent, automated approach that helps organizations meet full compliance and enhance the onboarding process for new hires and hiring managers alike. An electronic approach is likely to become even more important to an organization if and when the federal government passes comprehensive immigration reform.
Despite the various changes to the Form I-9, compliance shouldn’t be far out of reach. Employers can get up to date on the changes and educate their HR teams and new employees on what is expected.
Equipped with some knowledge and an understanding of the tools and processes that can further facilitate the Form I-9 process, employers can streamline onboarding activities, get employees into their roles faster while mitigating risk, meeting compliance, and protecting their bottom lines.