Human Resources

Would You Sign It in a Box? With a Fox? More Details on the New I-9

By Holly K. Jones, JD

In yesterday’s Advisor, BLR® Senior Legal Editor Holly K. Jones, JD, provided some informative Seussian rhymes to help HR professionals learn about the new I-9 form that must be used by January 22, 2017. Today, Jones has more information about this important change for our readers.

When you use the new I-9,

Don’t forget to print and sign.

It’s smart, but you’ll still need a pen

Until it is revised again.

The integrated “smart” features of the new I-9 encourage employers and employees to fill out the form in its digital PDF format. Yet, the form is still not an “electronic” form per government standards. This means that, in spite of the form’s numerous improvements, the United States Citizenship and Immigration Services (USCIS) version is still not equipped to be completed entirely in digital/electronic format.

The problem is that this new form can’t be signed.

Specifically, for an I-9 to be completed electronically, the attestations must be made using a compliant electronic signature protocol. This electronic signature method must:

  • Require the person signing to acknowledge that he or she read the attestation;
  • At the time of the transaction, attach the electronic signature to (or associate it with) a completed Form I-9; and
  • Create and preserve a record verifying the identity of the persons signing the form, then provide a printed confirmation of the transaction. (8 CFR 274a.2(h)).

The new Form I-9 (as provided by USCIS) does not comply with these requirements.

Employers wishing to move to a fully electronic I-9 process generally must use a third-party vendor to meet these requirements. Those currently using such a vendor or service may continue to do so, but will need to ensure that the service provider updates its forms to a compliant version of the new I-9 by January 22, 2017.

Otherwise, employers and employees may (and are encouraged to) fill out the new I-9 via the digital form, but when it comes time to sign the form, the otherwise completed form will then still need to be printed and signed manually.

Once signed, this physical copy may then be scanned and stored digitally. If scanned and stored according to applicable electronic retention standards, this electronic version of the form will fulfill I-9 retention requirements just as if it were the original paper version (and the paper version may be destroyed).

Whew!

(Note: An unsigned I-9 is essentially the same as having no I-9 at all, since the signature is the vehicle through which the employee and employer attest to the validity of the information recorded.)

What Hasn’t Changed?

The documents from List A (or B plus C).

Must be reviewed by business day 3.

Then keep I-9s for the duration

Of employment (and past termination).

Essentially, most of the changes to the form are technical improvements. The essential rules of employment verification remain unchanged. So:

  • You must still retain Form I-9 for every active employee. You may only purge these records after the longer of 1 year after termination or 3 years after hire (of an employee who has since been discharged). Don’t fall into the common misunderstanding of believing I-9s can be destroyed “3 years after hire” for active workers. Unless one of the handful of very limited exceptions applies, you must have an I-9 for every worker on your payroll.
  • The window for completing the form is also unchanged. Section 1 must be completed by the employee no later than the first day of work. This section may be completed sooner as long as an offer of employment has been extended. Section 2, the employer’s verification, must then be completed 3 business days after the employee’s first day of work.
  • You must still provide employees with the option to choose their preferred verification documents from the list of acceptable documents. The list of acceptable documents (also known as “List A,” “List B,” and “List C” documents) has not changed. As long as the documents offered are unexpired, appear to be genuine, and relate to the employee being verified, they’re acceptable.
  • There is a Spanish language version of the new I-9, but it is only to be used for verification by employers in Puerto Rico. However, employers outside Puerto Rico may use the Spanish language form as a cross-reference to assist workers with completing the English language version.