The Form I-9 must be executed by employers to show they have verified the lawful work status of their employees. The Form has become the Obama Administration’s main vehicle to enforce immigration compliance through employers. This seemingly simple one-page form is accompanied by a manual of almost 70 pages of instructions and frequently-asked-questions. Failure to execute the Form I-9 or comply with its complex requirements has resulted in millions of dollars of sanctions against employers. Offending employers found with I-9 violations often are left confused and subject to crippling fines, despite the absence of any clear, willful disregard for the law or intent to employ unauthorized foreign nationals.

The current Form I-9 was set to expire on August 31, 2012, but the United States Citizenship and Immigration Service (USCIS) has issued guidance extending the validity of the current form until further notice.

Why the extension? During the original 60-day comment period after it released the proposed Form I-9, the USCIS received over 6,200 comments. Reasons for the extension include public concern over the proposed changes and the proposal’s failure to correct issues in the older version.

After extending the public comment period several times, the comment period ended on October 15, 2012. Of course, employers have been vocal about the additional paperwork, photocopying and retention burdens under the propose Form I-9. Now, questions involve the format and timing of the release of the new Form I-9. Jackson Lewis has learned of concerns from many human resources associations and clients on the proposed revisions to the Form I-9. The American Immigration Lawyers Association, the National Retail Federation, the National Restaurant Association, and others have expressed legitimate concerns as to whether USCIS will consider the practical consequences of major changes to the Form and timing of the roll out.

Retail and hospitality industry employers around the country in particular have expressed alarm over a new Form I-9 emerging during high levels of seasonal hiring. A successful holiday season can make a material difference to employers in these industries and in the performance of the U.S. economy. Therefore, the timing of a release of the new Form I-9 potentially intersecting with year-end is a cause of anxiety among employers focused on increasing revenue during a crucial period.

Employers are seeking 180 days’ advance notice to phase in the new Form. This would allow both the current and the new versions of the Form to be used for a limited time. This approach is not unprecedented. It was allowed by the USCIS as recently as 2009. It would permit employers time to learn about the new form, train managers and employees on its completion, and to adapt information technology to the changes. This could avoid unforeseen and troubling consequences for businesses during the holiday season.

Small business owners tend to have access to fewer legal resources. They especially may be adversely affected by the proposed changes. Larger employers may face difficulties, too. Employers with thousands of employees may need to implement new software and process changes, potentially taking their focus away from critical business objectives. In addition, with the number and type of changes that are being suggested to the Form I-9, many corporate compliance systems will require rapid, large-scale changes, which will compete for resources with other internal technology developments. This is especially true of companies that utilize an electronic I-9 system or E-Verify.

In addition to the timing of the new Form I-9 release and implementation, the proposed changes themselves pose some questions among employers. USCIS has announced it intends to eliminate the “hard copy” Form I-94 card, the arrival-and-departure record issued to all arriving non-immigrant foreign nationals. USCIS does not address how the changes to an electronic arrival-anddeparture record system will be incorporated into the proposed Form I-9. It does not provide clear instruction for how an employer is to document that it has verified work authorization. By postponing the implementation of this new system, the USCIS can prevent duplication and waste for both enforcement officials and employers who must deal with the new Form I-9.