It is commendable that the Department of Homeland Security (DHS) is in the process of revising Form I-9 with the stated goal of making the form more user-friendly for employers. There is certainly no question that employers in the United States absolutely will welcome a more user-friendly Form I-9. Yet it is troubling that the proposed Form I-9 continues to make frequent references to Form I-94, when DHS has announced its intention of eliminating the I-94 card in the future. The Form I-94 card is a paper document stamped or endorsed by DHS (either by USCIS or by CBP) with a specific date until which a work-authorized foreign national is authorized to remain in the U.S. Until now, the combination of (a) the I-94 card and (b) the individual’s foreign passport has been considered a “List A” document for purposes of completing a Form I-9.

Employers will welcome a better I-9, but one thing they absolutely won’t welcome is frequent revisions to the form. Every time a new version of the I-9 is published, employers may no longer use old versions of the same form. It is very hard for businesses to keep up to date and ensure they are using the most recent version of the form. So DHS should ensure that all of its agencies are talking with each other and coordinating this round of changes to the I-9. The last thing employers need is an I-9 that tells them they must view a new employee’s I-94 card in order to properly complete an I-9, when I-94s have been phased out of existence.