New I-9 Form Requirements

For US Employers – I-9 Form Update

The I-9 Form is used to verify the identity and employment authorization of individuals in the US.

The I-9 form is a US Citizenship & Immigration Services form is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form. On the form, an employee must attest to his or her employment authorization.

The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form:

Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers. NOTE: State agencies may use Form I-9. Also, some agricultural recruiters and referrers for a fee may be required to use Form I-9.

On July 17, 2017, USCIS released a revised version of Form I-9, Employment Eligibility Verification. Employers may use this revised version or continue using Form I-9 with a revision date of November 14, 2016 N through September 17, 2017.

Starting on September 18, 2017, employers must use the revised form with a revision date of 7/17/17 N. USCIS has removed the prior version from its website. The only version that is available on the USCIS website is the new I-9 (7/17/17 N version).

Changes to the New I-9. As outlined by USCIS, the following changes were made to the new I-9:

  • Changes to Form I-9 Instructions:
    • USCIS changed references to the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
    • USCIS removed “the end of” from the phrase “the first day of employment.”
  • Changes to List of Acceptable Documents on Form I-9:
    • USCIS added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document.
    • USCIS combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
    • USCIS renumbered all List C documents except the Social Security card.

USCIS did not explain why it removed the language “end of day” from the I-9 instructions or its consequences.

Revised M-274. USCIS also revised the Handbook for Employers: Guidance for Completing Form I-9 (M-274) to reflect the changes noted above. In the alert, USCIS noted that the revised version is “easier for employers to navigate.” Members should note that where USCIS has historically provided the M-274 to the public in the format of a PDF posted on the USCIS website, USCIS has now organized and posted the content of the M-274 as a web-based resource. Employers still have the option to print the M-274 as a hard copy document (or print as a PDF) but the “printed” M-274 is no longer paginated and lacks a Table of Contents that allows employers to easily find content in the hard copy. USCIS has also provided a “Table of Changes” from the prior version of the M-274. It is yet unclear how often USCIS will be updating the M-274 and whether the “Table of Changes” will be continually updated to reflect future changes. As such, members should regularly check the current content of the M-274 when advising clients, as it will likely be a more dynamic document (more along the lines of I-9 Central) than it has been in the past.

Anticipated Changes to Form I-9 Relating to the Entrepreneur Parole Rule. When DHS announced the delay of the effective date of the final rule on parole for entrepreneurs until 3/14/18, the Federal Register notice (82 FR 31887, 7/11/17) stated that any changes to Form I-9 associated with the new rule would also be delayed until 3/14/18. Though this may mean a new I-9 could be released in March 2018, members should note that DHS also stated its intent to eliminate the rule following notice and comment. AILA will watch this closely and will provide updates to members as they become available.