In the last month, USCIS has issued news releases announcing two changes that directly impact US businesses. The first relates to the revisions to Form I-9, which is mandated for employers to use to establish and confirm employment authorization in the United States. The second pertains to the expansion of the in-person interview requirements for certain permanent residence applications.

Form I-9 revisions

On September 18, 2017, USCIS will require that all employers use its most recently published version of Form I-9 when verifying the employment authorization of new hires. The new form has a revision date of 07/17/17 and replaces the former Form I-9 with the revision date of 11/14/16. It is currently available for download on USCIS' I-9 Central website in both English and Spanish.

The distinction between the latest and the prior version of Form I-9 are relatively minor, with the formatting and layout remaining largely consistent. On the new form, USCIS has:

  • Listed Form FS-240, Consular Report of Birth Abroad, as an acceptable List C document
  • Combined all certification of birth reports issued by the State Department (Forms DS-1350, FS-545, and FS-240) as one option under List C documents for online versions
  • Rearranged the order of List C documents after the Social Security card
  • Revised the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the office's new name, the Immigrant and Employee Rights Section
  • Removed “the end of” from the phrase “the first day of employment” from the Form I-9 Instructions section

The maximum impact would be the addition of the consular report of birth abroad as an acceptable document. The rationale behind the last change is yet unclear and there is no guidance from USCIS on the reason for the change. The other changes should have no impact on Form I-9 compliance, implementation, storage or retention.

In conjunction with the changes to Form I-9, USCIS has also revised and issued a new M-274 Handbook for Employers: Guidance for Completing Form I-9. It is highly recommended that employers should use and refer to the latest versions of both the M-274 and Form I-9 as soon as is possible but no later than September 18, 2017.

In the current enforcement climate and nearly doubled fines for violations, employers would be wise to be vigilant and carefully monitor internal I-9 compliance to avoid liability in the event of an audit. Employers should conduct periodic compliance reviews to minimize liability.

Expansion of in-person interview requirements

On August 28, 2017, USCIS announced that it will be phasing in in-person interviews for employment-based adjustment of status applicants and refugee/asylee relative petitions for beneficiaries who are in the US and petitioning to join a principal applicant. This phase-in was scheduled for October 1, 2017 but as of the writing of this alert, USCIS has already scheduled interviews for this category for the end of September. USCIS has announced this new policy in fairly general terms and the implementation will guide the employers on the best ways to prepare their employees for the interviews.

In terms of impact, the biggest will be in the processing times. Currently, the processing time for an employment-based adjustment of a status application can be between 6 – 14 months. With the addition of the in-person interviews, the processing time will balloon considerably as this will entail not only the transfer of the files to the local USCIS field offices but also include scheduling, officer and space availability issues.

It is also unclear whether the interview will be required of nationals of certain countries or all countries. If the latter, then the processing time for Indian and Chinese nationals is expected to be the impacted the most because of their already extensive delays in processing.

Closer to the implementation time, clarity will be needed on whether the interview requirement will:

  • apply to only newly submitted applications after October 1, 2017, or will include the pending applications as of that date
  • be applicable only to the principal applicant or the dependents as well

The application of the proposed expansion of the in-person interview may have some benefit in weeding out fraud, but for the most part will impact professionals who have been contributing positively to the US economy for years and who have followed the legal requirements at every step. This interview requirement will also increase the cost for US employers sponsoring foreign nationals by forcing the employer to pay for the renewal of the employee’s underlying non-immigrant status for years after filing the adjustment of status applications.