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Davis Brown Employment and Labor Law Blog



New Electronic I-9 Form - Some Bugs and Tricky Provisions - November 18, 2016

A new I-9 form was released this week, which will become mandatory on January 22, 2017.  Until that time, employers may continue to use the “old” version (dated 03/08/2013).

 

Electronic completion

The form now can be filled electronically and printed for signature.  For those who can access the electronic version, the form itself contains pop-up instructions and some auto-fill features that will help users complete the form correctly.  It also has a link to the full instructions and a “start over” button.  The form may also be printed for manual completion.

 

Bugs

As always with technology, some practical challenges are already evident. The form will not load on some browsers or platforms.  In our office, the form is only accessible through Internet Explorer (it will not open in Chrome).  Some have reported inability to open it on a mobile device.  If you see a message saying you have the wrong version of Adobe, try another browser. Some other technical issues are being discovered, such as field character limits that may cut off long names and transposing Social Security numbers upon printing.  We hope and expect these errors will be resolved soon.

 

On the electronic version of the form, it auto-fills “N/A” in many fields as appropriate.  The instructions seem to indicate that filling in “N/A” in many places is required rather than optional.  If the manual version is being used, it is unlikely this instruction will be clear unless someone takes the time to review the entire instruction sheet.  We will update you once this issue is clarified.

 

The Spanish version of the form (which may be used as the official version only in Puerto Rico, but is used as a reference in many situations) does not currently have the pop-up instructions.

 

Tricky provisions

The electronic version does have some helpful features, such as matching the documents that may be entered with the employee’s representation of status in Section 1.  However, it also requires that the employer fill in a box in Section 2 that matches the status box checked by the employee in Section 1.  This is a new box that can easily be overlooked or misunderstood if not using the electronic version.

 

The form still contains limited space for re-verification in Section 3, apparently so that Sections 2 and 3 will fit on one page in the printed version.  This is unfortunate because of the opportunity created for error and inadvertent discriminatory practices if a new Section 2 is used rather than Section 3 in re-verification.  Interestingly, the form now contains a supplement to allow for multiple preparer or translator signatures rather than expanding the Section 3 space.

 

The form and instructions make clear that the person signing Section 2 must review original documents, indicating that hiring an agent to review I-9s in the remote hire situation is still necessary.

 

Employers’ next steps

The electronic version of the form is a step in the right direction for employers who can use it. The ability to send a link to a new hire and have them complete it online could be helpful. The form also has a self-check feature to prevent many errors.  The form now has a space to enter notes to clarify certain situations (the electronic version of writing in the margins).

 

For other employers who can only use the printed version, a careful reading of the instructions is necessary to avoid inadvertent compliance lapses.  Some inconsistencies with anti-discrimination interpretations by the Office of Special Counsel (OSC) still exist.  Employers would be well-advised to hold off on using the new form until technical and interpretive issues are clarified (it is not mandatory before January 22, 2017).

 

If worksite compliance becomes a focus of the Trump Administration, as we expect it will, it is a good time to review your I-9 compliance policies and practices, along with the new form.  Please let us know if we can assist.