On April 11, 2013, the AILA Verification and Documentation Liaison Committee met with the USCIS Verification Division and with ICE Homeland Security Investigations regarding the implementation of the new I-9 Form.

The following practice tips are based on the Agencies’ responses to questions raised during the meeting:

  •   Advise employers that they must begin using the new Form I-9 on May 7th 2013. Despite the issuance of conflicting information by USCIS regarding the effective date is May 7th and that there is not a grace period until May 8th. ICE also confirmed that it would not grant employers a grace period.

  •  Where old I-9 Forms are used after May 7th, work with employers to correct those records. ICE confirmed that use of an outdated form is a technical violation that the employer can correct this by either executing a new I-9 Form using the current form or by attaching an acknowledgement and explanation of the reason for the error.

  •  Train employers to understand the NEW Section 1 terminology and fields relating to the I-94 number. USCIS confirmed that there would be no additional changes to the form or instructions related to CBP’s new electronic I-94 process. Therefore, employers must be ready to guide nonimmigrant employees who were admitted by CBP with an electronic I-94 Form record and foreign passport. Practitioners should also familiarize employers with the new documentation that employees will present after printing their electronic I-94 Form records from the CBP website.

  •  Ensure that employers provide new hires with the full, expanded I-9 Form instructions at the time they complete Section 1 of the I-9 Form. USCIS confirmed that employees must receive the full set of instructions, for both the employee and employer portions, when completing the I-9 Form. USCIS confirmed that the employer may not restate or reformat the I-9 Form instructions, but may laminate the official I-9 Form instructions for distribution to new employees.

  •  Ensure that employers are familiar with rules about completing optional fields and fields with no responses. There are two new optional fields in Section 1 – the employee’s telephone number and e-mail address. Although the I-9 Form does not state this, the instructions confirm that these fields are optional. USCIS confirmed that there are new rules in the Form I-9 instructions for fields where, if no information is to be completed, “N/A” should be used in all fields where there is no applicable information in both Sections 1 and 2. Note that if the employee has no other name or names, he or she must record N/A in the corresponding field.

  •  Use the new I-9 Form must be used for all re-verifications. Where the employee, at hire, presented documents that are expiring and need to be reverified, the employer may not use Section 3 of an outdated I-9 Form to record the reverification of the updated documents. Employers must use Section 3 of a valid I-9 Form to record all reverifications. However, for a returning employee who is eligible for rehire on the original documents, the employer may complete Section 3 of the existing I-9 Form, even if it is an outdated version, as long as the employee is returning within 3 years of the original hire and the I-9 documentation continues to be valid.

  •  Establish a policy on employees with new identities. The newly updated M-274 Handbook for employers states that employers whose employees come forward with new identities “should” complete a new I-9 Form and, if enrolled in E-Verify, submit a query through the E-verify system. USCIS clarified that this is a suggested best practice but is not a requirement. Therefore, for employees who present documentation of a new identity, the employer should establish a policy to either completing a new Form I-9 and, if applicab