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Dealing with the New I-9 Form

The I-9 form may be the most complex and misunderstood one-page form ever issued by the federal government. But organizations must grapple with the latest iteration of the form, which becomes mandatory on May 8, or else suffer the consequences.

Wednesday, April 24, 2013
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It is safe to say that few one-page forms have caused human resource executives as many headaches as the Employment Eligibility form – aka the I-9 form. Completion of this form for all hires was made mandatory by the Immigration Reform and Control Act of 1986, and it has caused its fair share of misery ever since. Indeed, the I-9 may be the most complex and misunderstood one-page form ever issued by the federal government.

Employers generally take care to avoid mistakes when completing the form, since even simple paperwork fines can range from $110 to $1,100 per violation. Several companies have had to pay multimillion-dollar fines merely for paperwork violations, while some have been subject to criminal penalties, including jail time for executives found guilty of knowingly hiring undocumented workers and keeping them on the payroll.

Unfortunately, things are not likely to improve any time soon. In fact, they will probably get worse. On March 8, 2012, the United States Center for Immigration Services published the seventh edition the I-9.  Its use becomes mandatory on May 8.

The new form has morphed from one to two pages -- three, if you include a page entitled "Lists of Acceptable Documents."  Instructions are now five to six pages in length.  The United States Citizenship and Immigration Services also updated its 70-page handbook for employers.

The aim of the new I-9 form is laudable: to clear up many of the ambiguities that have existed in the past, including: How should persons with temporary visas complete Section One? What should employers do in Section Two if they are presented with a receipt instead of a listed document? How does one perform the reverification process in Section Three?

Unfortunately, bigger does not always mean better, and that often is the case with the new, expanded I-9 form.

Changes in the Form

On the new form, page one must be completed by the new hire, while page two is solely the employer's responsibility.

Section One now gives new hires the option of providing their telephone numbers and e-mail addresses. The Department of Homeland Security plans to use this information to contact an employee whose information on the I-9 does not match DHS or Social Security records. If workers choose not to complete those fields, they are advised to write "N/A".

Certain foreign nationals who are not lawful permanent residents of the United States may be required to list the country of issuance of their passports and their passport numbers on the I-9. The rules regarding this subject are complicated, and employers will want to read both the instructions and the handbook for employers carefully, and consult with their attorneys, where necessary.

In general, the passport information is required if the person's I-94 Arrival-Departure document was issued by the Customs and Border Protection agency when they arrived in the United States. However, if they extended or changed their status or their employer and their I-94 was issued by USCIS, they should write "N/A" in these fields.

It's Complicated

Because these are new requirements, it is not yet clear how the government will classify errors. Errors which are classified as "procedural" means the government will not impose fines on the employer. The government will, however, fine the employer if they classify the error as "substantive".

When completing I-9 forms -- both the old and the new -- employers are faced with a formidable task.  Many of the fields on the forms are far more complex than they appear. Below are a few examples:

In Section One, how many employers or new hires know what a "noncitizen national" is?  The instructions to the new form define this term as follows: "Noncitizen nationals of the United States are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands and certain children of noncitizen nationals born abroad." Unlike the old instructions, the USCIS has, at last, defined the term. However, this definition is about as clear as mud. The use of the words "certain" and "former" make this definition ambiguous. Are new hires and employers expected to know the definition of "former Trust Territory or the Pacific Islands"? Look this up on Wikipedia and you will learn about Chuuk, Yap, Kosrae and Pohnpei. Seriously.

Few employers know that new hires need not list their Social Security numbers in Section One. Unless, of course, the employer is part of the E-Verify system, in which case the listing of the Social Security number is mandatory. The new instructions make this clear.

Because the penalties for noncompliance are so severe, many employers lean over backwards in attempting to comply with these complex rules. Ironically, these efforts are often to the employer's detriment. The Justice Department's Office of Special Counsel has fined numerous employers, some more than $100,000, for demanding too many documents from new hires and for discrimination. 

In the world of I-9s, things that may seem obvious often are not. For example, if a new hire is a "conditional permanent resident," his permanent residence expires after two years. Shouldn't the employer re-verify his employment authorization before it expires? Simple logic says "yes", but the instructions say "no". If the employer does so, he or she is violating the law.

And, once the discussion shifts to temporary working status, there is little in the law or the regulations to guide employers. So, in the guide titled Handbook for Employers: Guidance for Completing Form I-9, the USCIS must simply resort to making things up.

Virtually every time the agency issues new policy guidance regarding employment authorization, it is forced to invent a method for employers to incorporate this guidance into their I-9 compliance procedures.  For example, consider the "cap-gap". F-1 students, upon graduation, can apply to work using "optional practical training," usually for one year. However, students typically graduate and obtain their OPT in June. If an employer wants to sponsor them for an H-1B temporary professional working visa, this must be done in April, yet their H-1B employment authorization does not begin until Oct. 1. So, what are students supposed to do between the time that their OPT expires in June and when their H-1B starts in October? Quit their jobs and return to their country? This is impractical both for the student and for the employer. So, a few years back, the government issued a "cap-gap" memo that permits students employed using OPT to continue to work throughout the summer as long as their employers had submitted H-1B petitions and applications for a change of status on their behalf, and they were either pending or approved. 

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A great idea on the USCIS' part, but how is an employer supposed update a student's I-9 in such circumstances? Obviously, the employer cannot rely on either the law or the regulations as a guide, because the "cap-gap" rule is solely the creation of an agency memo. So, as usual, the USCIS simply made something up, and employers can find the answer on page 21 of the handbook.

This is also true with regard to some programs which provide work permits, such as temporary protected status. The USCIS often waits until the last minute and simply publishes an item in the Federal Register, automatically extending TPS and work permits. (I often wonder how many human resource executives start each day with a cup of coffee and a copy of the Federal Register, with its wide array of new and fascinating federal regulations, spread out before them. Not many, I suppose.)

Yet, when it comes to sponsoring employees for work visas and green cards, the federal government is very exacting in requiring employers to place advertisements in newspapers "of general circulation" and in posting job notices for a certain number of business days in specified locations.  When comparing how immigration rules impact federal agencies and private employers, what is good for the goose is not necessarily good for the gander.

What To Do?

If you are an HR executive in a company with hundreds -- or even thousands -- of employees, you probably have considerable experience with these issues. To stay current, you can attend I-9 seminars and make sure you carefully read the new I-9 form, the instructions and the USCIS handbook.  Also, you probably can consult with an attorney who is well-versed in I-9 issues on a regular basis and you would be prudent to perform regular internal audits to make sure that you are fully compliant with I-9 rules.

It is also a good idea to bookmark USCIS' I-9 Central and our Employer Compliance Guide, both of which are free online resources.

However, if you work with a small business and you have neither the time nor the personnel to do any of this, it is probably a good idea to say a little prayer or sign up for E-Verify.

Or, perhaps, do both.

Carl Shusterman is principal of the Los Angeles-based Law Offices of Carl Shusterman. He served as a trial attorney for the U.S. Immigration and Naturalization Service from 1976 to 1983.

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