Transitioning to the Condensed and Restructured Form I-9

In a previous post we reported on the DHS final rule authorizing remote I-9 employment verification for certain employers enrolled and actively participating in the E-Verify procedure.  In conjunction with the rule change, DHS rolled out a new edition of the Form I-9 on 08/01/23 and invited employers either to begin using the new form immediately for both in-person and remote verifications, or to continue using the prior edition until November 1, 2023, when use of the new form becomes mandatory.  The new form can be found here.  Many employers opted to delay implementation of the new form either to allow time for their electronic I-9 vendor to revise their systems and/or to train staff on the proper use of the new form and update policy manuals to conform with changes in procedure.

This post comments on the stylistic changes between the old and new form, practical concerns in converting to the new form, substantive employer sanctions violations, and new exposure to document abuse and disparate treatment claims stemming from conversion to remote verification.

Stylistic Changes

• The most obvious difference is that the new form consolidates the Employee and Employer attestation sections on the same page (Page 1 or 4), with the reverse side (Page 2 of 4) containing the List of Acceptable Documents.  This change marks a return to the original single-page configuration of the I-9 following implementation of the Immigration Reform and Control Act in May 1987.   In 2013, DHS expanded the form to two pages, doubling the paperwork retention burden on employers reliant on paper I-9s.  For most employers still using paper I-9s, this change will greatly reduce their paperwork burden.
• There is no change in the employee identification data fields in Section 1 are unchanged.  However, the employee immigration status attestation block of Section 1 has been condensed and juxtaposed with the Employee attestation language to the left.   Individuals attesting to foreign status are still required to provide their USCIS or A-number (if lawful permanent status is checked) and their USCIS or A-number, I-94 number, or Foreign Passport Number and Country of Issuance (if noncitizen authorized to work status is checked).  
• Immediately below the Employee signature line is a new admonition: “If a preparer and/or translator assisted you in completing Section 1, that person MUST complete the Preparer and/or Translator Certification on Page 3.”  Although seemingly directed at the Employee, by law and regulation the Employer is singularly responsible for ensuring that the I-9 Form is properly completed, including the Prepare/Translator subsection.  The new Supplement A Preparer/Translator Certification at Page 3 of 4 of the revised form provides multiple signature blocks for use at the initial hire, reverification and rehire stages, as needed.   
• Section 2 (Employer Review and Verification) – now appears immediately below Section 1 on Page 1 of 4 of the revised form.  The related instructions have been modified to allow for physical examination of employee documents or for remote examination consistent with the requirements contained in alternative procedure rule.    The space for recording data in document categories A, B and C has been condensed considerably and employers using paper I-9s may find they have less room to record the required document information on the new form.  The “Additional Information” block below Lists B and C can be used to accommodate supplemental verification information previously consigned to the margins, such as documentation updating temporary receipts or corrections made during internal audits.   The Additional Information block in Section 2 also contains a mandatory checkoff If the authorized alternative remote verification procedure is utilized rather than in person physical inspection.
• The Employer attestation subsection of Section 2 has been reconfigured to provide a separate data field to record the employee’s first day of employment, but the Employer certification and the remaining Employer data fields are unchanged.
• The Lists of Acceptable Documents on Page 2 of 4 has been updated to provide greater clarity for List C documents and Receipts, requiring reference to hyperlinked provisions of the M-274 Handbook and I-9 Central for updated validity periods and extensions to employers using the electronic version of the form for completion.  
• “Supplement B” (Page 4 of 4),” contains the relocated Section 3 data fields for use in   reverification, rehire, and name changes–with multiple data blocks to accommodate successive updates to an employee’s I-9 file, as needed.

Practical Concerns in Converting to the New Form

• Employers using paper I-9s will need to devise an action plan that allows them to ensure that Section 1 and Section 2 can be completed in the same document.  Field hiring makes this difficult unless the employer representative supervising completion of Section 1 is also competent to complete Section 2 with the employee physically present.  Based on my many years’ experience, this practice is prone to result in I-9 errors.   Further, this practice requires applicants to be given prior notice of the List of Acceptable Documents and to be ready to present them on the first day of employment.  Additionally, if an employer follows the recommended practice of retaining copies of verification documents, scanning or copying equipment must be available at field hiring locations.   Given the risks involved, the combination of Section 1 and Section 2 on a single page militates against the use of paper I-9s for field hiring.

• To take full advantage of having Sections 1 and 2 of the Form on the same page, employers are best served by choosing an electronic platform that allows for electronic signatures compliant with DHS requirements.  Such a system must:
  • Allow individuals to acknowledge that they have read the attestations.
  • Affix an electronic signature to an electronically completed Form I-9 at the time of completion.
  • Create and preserve a record verifying the identity of the person producing the signature.
  • Provide a printed confirmation of the transaction upon request.
  • Include a method to acknowledge attestation to the required information in Section 2.
• Creating a compliant electronic platform or contracting with a credible electronic I-9 vendor can involve substantial investment, but failure to do so can result in even more costly errors and I-9 fines if audited. 

What Hasn’t Changed – The Top 10 List of Substantive Employer Sanctions Violations

1. Hiring, continuing to employ or rehiring an individual known to be unauthorized to work.
2. Failing to prepare a Form I-9 for every employee.
3. Failing to ensure that a new hire completes Section 1 prior to the close of the first day of work.
4. Failing to ensure that an employee completes the Immigration Status portion of Section 1.
5. Leaving Section 2 incomplete or blank.
6. Accepting a document not on the List of Acceptable Documents – such as a restricted Social Security Card (List C) 
7. Accepting a document known not to relate to the employee and/or to be fraudulent or obtained fraudulently.
8. Failing to complete Section 2 within 3 business days following the first day of work.
9. Failing to reverify an employee and properly complete Section 3 prior to the expiration of an employee’s DHS temporary work authorization.
10. Failing to retain an I-9 for inspection for the duration of employment plus one year, or three years if employed less than 3 years.

Avoiding Liability for Claims of I-9 Document Abuse and Disparate Treatment Based on Immigration Status

The above list does not include the IRCA document abuse and immigration-related discrimination provisions enforced by the Employee and Individual Rights (IER) Section of the Civil Division of the U.S. Department of Justice.  Prohibited practices include treating individuals of foreign origin differently than U.S. citizens and U.S. nationals in the document verification process – such as insisting on production of a lawful resident alien card as a condition of employment, or vetting immigration status and employee documents prior to extending a conditional offer of permanent employment.  The 08/10/23 I-9 format changes won’t necessarily expose employers to any greater risks of discrimination liability, but the transition to a remote verification model could expose an employer to added risk of discrimination claims by employees perceiving a difference in treatment.   For that reason, it is recommended that employers adopt carefully crafted procedural instructions for employer representatives charged with I-9 completion at each employee hiring location or for each employee subgroup to ensure consistency in processing.  It is also recommended that employers adopt a procedure for reporting suspected I-9 abuse internally to ensure that such complaints are investigated and resolved promptly and that meritorious claimants are made whole for any loss of wages resulting from inadvertent discrimination.

Conclusion

As always, checking with counsel prior to implementing major changes to the I-9 procedure is a wise move to ensure that changes in processes and procedures do not give rise to expensive systemic violation liability under the inflation adjusted fine models adopted by DHS and EIR.