Are you someone who jumps at the chance to have the latest and greatest brand, model, or version of whatever interests you? Hint, the answer is yes if you just traded up from the iPhone 14 to the iPhone 15 Titanium. [Hey, don’t judge me!] For new Frankly Speaking readers, the commentary in [brackets] is channeled from my snarky alter ego. [You know I don’t like being called “snarky.”]
Or are you a person who keeps using what you have as long as possible? Did you reluctantly buy a new cellphone only after receiving a notice that your old phone wouldn’t work on the upgraded network? Splurged on a reconditioned 43-inch LED Smart TV when your 15-year-old “dumb” TV couldn’t be repaired? And you’re still happily driving an SUV with 153,000 miles that you bought in 2014. [Your wife is still driving that thing?!]
The long wait is over
Well, if you’re a fan of the familiar, I have some potentially irritating news. Beginning Wednesday, November 1, 2023, all employers must use the recently updated Form I-9 for employees hired on or after that date. [Wow, after that huge build up, all you got is a new I-9 form? Talk about anticlimactic.]
The new Form I-9 – Employment Eligibility Verification form – was released by U.S. Citizenship and Immigration Services (“USCIS”) on August 1, 2023. This updated Form I-9 replaces the previous version, which, coincidentally, expired on October 31, 2022. In the interim, USCIS had instructed employers to continue using the expired form until the updated version was released and provided a three-month phase-in period through October 31, 2023.
The most recent iteration of Form I-9 contains several noteworthy changes, including the following:
- Sections 1 and 2 on One Page The most significant and recognizable change from several previous versions of Form I-9 is that Section 1 – Employee Information and Attestation – and Section 2 – Employer Review and Verification – are on a single page. USCIS contends that this so-called simplification will ensure a more efficient and user-friendly experience for employers. However, in reality, many of us with decades of experience assisting employers with Form I-9 compliance expect more confusion and a corresponding increase in errors. [We must be spending too much time together; I remember falling asleep reading your tantalizing article about how employers are charged enormous fines for Form I-9 errors. Something about I-9s and cannoli.]
- “Alien” Changed To “Noncitizen” USCIS no longer refers to individuals as “aliens,” instead referring to them as “noncitizens.” Additionally, Section 1 under Status 4, USCIS clarified that a noncitizen employee must provide a USCIS number, Form I-4 Admission number, or Foreign Passport number with the Country of Issuance.
- Preparer/Translator Certification To fit Sections 1 and 2 on a single page, USCIS removed the Preparer/Translator Certification acknowledgment checkboxes and moved the remaining fields to a separate page labeled Supplement A. Going forward when an employee completes Form I-9 with the assistance of one or more preparers and/or translators, each must complete and sign Supplement A, which the employer must retain with the employee’s Form I-9. Given that, in my experience, employees and employers often overlooked the Preparer/Translator fields when previously included in the main body of the form, moving these fields to a separate supplemental page will increase the likelihood that the information will not be provided when necessary.
- Employee Reverification and Rehire Previously labeled Section 3 – Reverification and Rehire – this information is now entered in Supplement B. Employers should use Supplement B to update Form I-9 when an employee is rehired within three years of the date the I-9 was initially completed; when a current employee provides proof of a legal name change (marriage, divorce, legal name change, etc.); or when a noncitizen employee is required to reverify their eligibility to work in the U.S. On the positive side, separating this section helps ensure employers will use the most current supplement when needed. However, it also appears likely that employers will forget to use Supplement B when required because it is no longer part of the Form I-9 document.
- “N/A” is N/A USCIS (finally) eliminated the requirement to write “N/A” in Section 1 fields that were otherwise unused, such as “Other Last Names Used” and “Apt. Number.”
- Updated Lists of Acceptable Documents The Lists of Acceptable Documents page was revised to include acceptable document receipts in addition to the actual documents that employees may present when completing Form I-9. USCIS also provides guidance and links to information on automatic extensions of employment authorization documentation. However, as with past versions, the Lists of Acceptable Documents does not include several documents that USCIS has otherwise determined to be acceptable.
- A Mobile-Friendly Form With the ubiquitous use of mobile devices, USCIS designed the revised Form I-9 to be fillable on tablets and other mobile devices. While this allows the document to be completed electronically, there are still regulatory limitations on the use of electronic signatures and the storage of electronic Form I-9 documents.
- While the signature fields throughout the document do allow the user to type their name in the field, a typed name in these fields is not an acceptable electronic “signature.” To comply with federal regulations, Form I-9 must be printed and physically signed by the employee and employer’s representative.
- Employers are generally required to maintain hardcopy Form I-9 files. Regardless of whether Form I-9 is completed electronically or on paper, a hardcopy of Form I-9 with original signatures must be filed and maintained by the employer, along with hardcopies of Supplements A or B.
- The only exceptions to the points above are for employers using a fully electronic Form I-9 system that complies with federal rules regarding electronic signatures and electronic data storage.
- Streamlined Instructions The Form I-9 instructions were reduced from 15 to 8 pages. Condensing the instructions was an attempt by USCIS to increase the likelihood of employers reading the instructions, thereby making it easier for employers to understand and comply with Form I-9 requirements. [Right…but does anyone really understand any of it!]
Form I-9 Q & A
Whenever I mention anything related to Form I-9 compliance, my team and I are guaranteed to receive dozens of questions. [Like, why are you so fascinated with I-9 forms?] Below are some of the most common questions we receive:
Q: I’ve never heard of an I-9 form. Is it something new, and what will happen if we don’t have one for every employee?
A: Employers have been required to complete and retain an Employment Eligibility Verification form – Form I-9 – for every individual hired on or after November 6, 1986. [I’ll bet you celebrate every year with a cake that says, “Happy Anniversary Form I-9!”] Under current rules, Section 1 of Form I-9 must be completed between the time the employee received a written job offer and no later than their first day of employment. Section 2 must be completed by the employer no later than the employee’s third day of employment. Employers who fail to follow these requirements are subject to penalties of up to $2,701 for every Form I-9 that is missing or completed incorrectly. These penalties may be enhanced up to 25% for “aggravating” factors, including business size (5%), employer’s bad faith (5%), seriousness of the errors (5%), presence of unauthorized workers (5%), and the employer’s negative history with the agency (5%).
Q: Can the employer complete Section 1 of Form I-9 for the employee?
A: No. The employee must complete, sign, and date Section 1 of Form I-9. If the employee requests the help of a preparer or a translator, the employer may provide the appropriate assistance and must complete Supplement B.
Q: Our online employee onboarding program completes most of Section 1 of Form I-9 using information the employee entered as part of the job application process. Is this a potential issue?
A: Yes, and the employer will be responsible for this issue, not the vendor. Regardless of whether Form I-9 is completed electronically or by hand using a printed form, the information in Section 1 must be entered by the employee. If a preparer is used, they must ask the employee for the information and complete Section 1 in the employee’s presence. Under no circumstances can Section 1 be prepopulated.
Q: Now that the updated Form I-9 is required, do employers need to complete a new form for all employees?
A: No. Employers should not complete a new Form I-9 for current employees when the form is updated. Further, there could be consequences for doing so. Once completed, Form I-9 is retained the entire time the individual is employed and for a required period following the end of employment.
Q: Is it true that employers are no longer required to complete the Form I-9 process, including looking at the employee’s documents, in person?
A: Maybe; it depends. Because it’s a somewhat complicated explanation, I’ll provide the details in an upcoming part two article. [Oh, the anticipation is already overwhelming.] For now, the short answer is that only “qualified employers” – those using E-Verify and in “good standing” with the program – are allowed to use the new Alternative I-9 Document Examination Procedure. All other employers must continue to complete the Form I-9 process – including physically examining the employee’s I-9 documentation – in person with the employee present.
The bottom line
A recent study of 1.5 million hardcopy I-9 forms showed an employer error rate of 76%. Further, penalties for an error rate above are $2,701 for every Form I-9 completed incorrectly or missing. That means an employer with 25 I-9 forms with an error rate of 76% would face a minimum penalty of $51,319 (19 x $2,701). For an employer with 100 I-9 forms, a 76% error rate translates to an incredible $205,276 (76 x $2,701). If your company’s Form I-9 error rate is 76% what would your penalties be? With the potential for financially devastating situation only a random I-9 audit away, there’s no better time for us to review and help correct your I-9 forms. I promise it won’t cost anywhere near $2,701, or even $272, per form. Please email us at HRAnswers@hrcexperts.com for more information and to get started.
Please email us at HRAnswers@hrcexperts.com for more information on Form I-9 or any other HR compliance-related topic. Remember, when you only have one chance to get it right, you need HR Compliance Experts. [Very punny. I’ll bet you came up with that.]
If you have questions about compliance with local, state, and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Posted by Frank Cania, president of HR Compliance Experts LLC.
© 2023 HR Compliance Experts LLC
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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