Expired Form I-9 Still in Effect

The current version of the Form I-9, the most fundamental tool used to determine if applicants are eligible to work in the U.S., expired on March 31. Until further notice, though, employers should keep using the expired form until the recently proposed “smart” I-9 is in effect, according to U.S. Citizenship and Immigration Services (USCIS).

Dave Basham, a senior analyst in the verification division at USCIS, has been answering the following question a lot recently: “What will happen on March 31, 2016, when the Form I-9 expires?” Basham says: “Employers should continue to use the current version of the form as it continues to be effective even after the OMB [Office of Management and Budget] control number expiration date March 31, 2016, has passed.”

On March 28, 2016, USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment. Once the comment period ends April 27 and comments are considered, USCIS may make further changes before sending the proposal to OMB, which will need to review and approve it. The form will be available for download at www.uscis.gov upon being approved.

“Employers must continue to use the current version of Form I-9 until the proposed version is approved and posted on the USCIS website,” said Amy Peck, an immigration attorney in the Omaha, Neb., office of Jackson Lewis.

The proposed, revised form is designed to address frequent points of confusion that arise for both employees and employers.

The proposed changes specifically aim to help employers reduce technical errors for which they may be fined, and include:

• Validations on certain fields to ensure information is entered correctly. The form will validate the correct number of digits for a Social Security number or an expiration date on an identity document, for example, Fay said.
• Additional spaces to enter multiple preparers and translators.
• Drop-down lists and calendars.
• Embedded instructions for completing each field.
• Buttons that will allow users to access the instructions electronically, print the form and clear the form to start over.
• A dedicated area to enter additional information that employers are currently required to notate in the margins of the form.
• A quick-response matrix barcode, or QR code, that generates once the form is printed that can be used to streamline audit processes.
• The requirement that workers provide only other last names used in Section 1, rather than all other names used.
• The removal of the requirement that immigrants authorized to work provide both their Form I-94 number and foreign passport information in Section 1.
• Separating instructions from the form. Employers are still required to present the instructions to the employee completing the form, however.
• The addition of a supplement in cases where more than one preparer or translator is used to complete Section 1.

The proposed changes will have far-reaching impact because all employers are required to complete and maintain the Form I-9 for each employee hired to verify their identity and authorization to work in the United States.