The Form I-9 is about to change again – are you ready?  On March 27, 2012, USCIS published a notice in the Federal Register soliciting public comments to their proposed 12th revision of the Form I-9.   Comments are due today – May 29, 2012.

What’s New?

Substantively, the Form I-9 will not change much.  However, the proposed Form I-9’s format will be very different.  Since its debut in 1987, the Form I-9s instructions have continuously increased in length (currently three pages), while the form itself has remained a single page.  However, for the first time in I-9 history, USCIS’ proposal divides the form’s contents into two separate pages.  The proposed Form I-9 offers an organized, intuitive layout by separating employer and employee required information onto their own respective pages. 

The Good:

One word – guidance.  The proposed Form I-9 carries with it six full pages of instructions providing employers with much needed guidance.  For example, the proposed instructions provide a brief, but clear roadmap of the Form’s layout and employer retention requirements.  Additionally, Section 1 of the proposed instructions breaks down the employee instructions by each piece of information the employee will be asked to provide, in the order the Form I-9 asks for it.  Likewise, the proposed Form I-9 instructions for Sections 2 and 3 greatly assist the employer’s understanding of its responsibilities with regard to those Sections, including separate sections for initial verification and reverification or rehires.  The Section 2 instructions also provide much-needed clarity regarding documents presented by students or exchange visitors and use of the receipt rule. 

The format of the proposed Form I-9 also goes a long way to reduce confusion and the inadvertent failure to include certain information.  For example, the proposed Form includes specific digit placeholders for the various numbers required of aliens – i.e., the proposed Form provides space for a 9-digit Alien Registration Number. 

The proposed Form I-9 also revises the format of information provided in Section 2 regarding the documents presented such that it specifies that it requires issuing authority, document number and expiration dates (if applicable) for List B and List C documents.

The proposed Form I-9 also separates space to provide the employer’s business name from the employer’s address and specifically breaks out the address with space to provide street number and name, city or town, state and zip code.  Believe it or not, the employer’s business name and address on the current Form I-9 has been a significant source of error for many employers.

Although the documents acceptable for Form I-9 purposes remain the same, the proposed Form I-9 revises the format of the Lists of Acceptable Documents (page 9 of the proposed Form) to clarify the requirements for certain documents.  For example, under List C, the proposed Form specifies the restrictions that may appear on a social security card that would render it unacceptable for List C purposes. 

The Potentially Confusing:

The proposed Form I-9 does include two completely new fields for the employee.  The employee can opt to provide an e-mail address and phone number.  The proposed Form I-9 advises the employee that although the information is voluntary, it “may assist DHS in contacting you regarding verification of your employment authorization.”  The fields may trigger additional employee questions (personal or work email? day or evening phone?).  In addition, employers should note the ease with which DHS or DOJ could contact employees directly to discuss the employer’s immigration compliance procedures.  Email and phone numbers make direct employee contact all the more likely than before. 

The Bottom Line:

Overall, the proposed Form I-9 de-clutters the Form I-9’s content and leaves less room error in completing the Form I-9.  As a reminder, the proposal is still in draft form and employers should continue to use the current Form I-9 until any changes are made permanent. 

Emilie McNally, Summer Associate at McGuire Woods, contributed to this blog.