Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On January 31, 2020, the U.S. Citizenship and Immigration Services (USCIS) published a new edition of Form I-9, Employment Eligibility Verification, approved by the Office of Management and Budget on October 21, 2019. Employers may begin using this updated form immediately, but must use it as of April 30, 2020.1 All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States, including citizens and non-citizens.2 Both employees and employers (or authorized representatives of the employer) must complete the form.
Per the Federal Register announcement, USCIS has made minor changes to Form I-9. First, USCIS added Eswatini (previously, Kingdom of Swaziland) and North Macedonia (previously, Macedonia) to the “Country of Issuance” field in Section 1 and the “foreign passport issuing authority” field in Section 2 per those countries' recent name changes.3
USCIS provided more clarification in its accompanying “Instructions for Form I-9” regarding who can act as an authorized representative on behalf of an employer (“An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf”). The agency also updated its website addresses, and provided “acceptable document” clarifications. Specifically, if List A is filled out, “N/A” should not be inserted in List B and C columns; if List B is filled out, no document information or “N/A” should be filled out in list A.
The USCIS clarified instructions on different IDs presented in List B. For example, when discussing the box indicating that one qualifying “List B” document is an “ID card issued by federal, state, or local government agencies or entities,” USCIS now expressly notes that “[t]his selection does not include the driver’s license or ID card issued by a State or outlying possession of the United States as described in B1 of the List of Acceptable Documents.”4 These are two separate “List B” qualifying documents.
Further, USCIS explains that an employer’s selection of a “List C” document means that an employer should “not enter document information or N/A in List A.”5 USCIS explains that “[i]f you complete Section 2 using a computer, a selection in List C will fill all the fields in the List A column with N/A.” Moreover, the instructions expressly note that “an employment authorization document issued by DHS” (List C #7) does not include “the Employment Authorization Document (Form I-766).”6 This document, Form I-766 (EAD), remains a qualifying document under List A.
Finally, USCIS updated the process for requesting the paper Form I-9, and updated the Department of Homeland Security Privacy Notice.
As noted, employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020.7 USCIS is allowing employers this additional time to make necessary updates and adjust their business processes. After April 30, 2020, employers that fail to use Form I–9 (Rev. 10/21/2019) may be subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a, as enforced by U.S. Immigration and Customs Enforcement (ICE).8 Employers must continue to follow existing storage and retention rules for previously completed Forms I-9.
1 See USCIS, Announcements: What’s New, USCIS I-9 Central (Jan. 31, 2020) (available at https://www.uscis.gov/i-9-central/whats-new/whats-new).
2 See 85 FR 5683
4 See USCIS, Form I-9 Instructions, Forms: I-9 Employment Eligibility, USCIS (Jan. 31, 2020) (available at https://www.uscis.gov/i-9).
7 See 85 FR 5683