US Citizenship and Immigration Services (USCIS) announced in the Federal Register on January 31, 2020, that the new version of Form I-9 (rev.10/21/2019) would be available for use on January 31, BUT employers can still continue to use the prior effective version of the Form I-9 (rev. 07/17/2017N) through April 30, 2020. This announcement basically provides a 90 day transition period for penalty purposes. Note that there is no requirement to complete a new Form I-9 for existing employees when a new Form I-9 is implemented.
What happens if I don’t use the current version of the Form I-9?
The joint guidance published by the U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (now known as the Immigrant and Employee Rights Section – EIR) advises that when an employer discovers during an internal audit that the wrong version of a Form I-9 was completed, the following:
As long as the Form I-9 documentation presented was acceptable under the Form I-9 rules that were current at the time of hire, the employer may correct the error by stapling the outdated completed form to a blank current version, and signing the current blank version noting why the current blank version is attached (e.g., wrong edition was used at time of hire). In the alternative, the employer may draft an explanation and attach it to the outdated completed Form I-9 explaining that the wrong form was filled out correctly and in good faith.
Thus, to avoid extra time and administrative hassle, it is important to get the right version of the form in use timely. Please refer to the version date in the bottom corner of the Form I-9.
Where is there a record of what version of the Form I-9 is acceptable?
Please refer to the historic list on Form I-9 Central at: https://www.uscis.gov/i-9-central/complete-correct-form-i-9/which-form-i-9-should-i-use . The explanation of what form is required can be confusing. On February 3, for example, the list posted reflects the following information indicating that only the form showing the date of 10/21/2019 is correct for use, but there is an all important asterisk next to both the 10/21/2019 and 07/17/2017N versions, which reflects correctly that on February 3, 2020, both versions may be used.
Currently, only the forms showing the following revision date are valid:
Listed below are the dates Form I-9 was revised. An “N” next to the revision date means that Form I-9 with earlier revision dates can no longer be used to verify employment eligibility. A “Y” next to the revision date means the form is valid until USCIS issues a new form with a revision date containing an “N”.
Rev. 07/17/2017 N*
* Currently valid version.
What are the changes of note in the new Form I-9?
- In the smart I-9 version of the Form I-9 on-line, USCIS added two countries to the country of issuance field in Section 1: Eswatini and North Macedonia. In addition, these two countries were added in Section 2 as passport issuing authorities.
- In the instructions to the new Form I-9:
- Clarification of who can act as an authorized representative on behalf of an employer.
- Update of USCIS website addresses.
- Clarification of acceptable documents.
- Update about how to request the paper Form I-9.
- Update of the Department of Homeland Security (DHS) privacy notice.
- As to authorized representatives for the completion of Section 2 of the Form I-9, the new Form I-9 instructions do confirm that any person may be designated to complete and sign the form on the employer’s behalf. The employer, of course, is still liable for errors of their designee in Form I-9 completion.
- The new Form I-9 instructions also indicate that employers do not have to insert “N/A” into unused lists of recorded documents in Section 2 of the Form I-9. For example, there is no requirement to insert “N/A” in List B and C blanks, when List A is completed in Section 2.
- In addition, as to List C documents in Section 2, the new Form I-9 instructions note that the List C number 7 bucket for employment authorization documents issued by DHS does NOT include the I-766 employment authorization card from the List A employment authorization documents.
- Also of note, the new Form I-9 instructions indicate that a List B identity card issued by a federal, state, or local government agency or entity does NOT include a driver’s license or identity card issued by a State or outlying possession of the United States as described in section B1 of the List of Acceptable Documents.
- Please note that the instructions to the Form I-9 do provide acceptable abbreviations of documents for List A, B, and C completion. These abbreviations are populated when the Form I-9 is completed on the computer version of the form (smart I-9) available on the USCIS website.
About the Author:
Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She serves on the AILA Board of Governors. In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950). She has testified several times before Congress on matters of immigration policy and border security. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.