Comments on New Proposed Form I-9
By: Dave Fowler
As you may have heard, on March 27, 2012 USCIS published a new proposed Form I-9
in the Federal Register. The posting is open to public comments through May 29, 2012. The new
proposed Form I-9 is now a two-page form with Section 1 on one page and Sections 2
and 3 on a second page. The Form I-9 plus the acceptable document list and instructions
is now a total of nine pages long, up from five pages. I encourage you to review the
new proposed Form I-9 and provide your comments. You do not need to identify yourself
or your employer to comment. You can do it anonymously if you prefer.
You can also obtain information on the new
proposed Form I-9 at the USCIS web site by
going to USCIS
Seeks Public Comment on Revisions to Employment Eligibility Verification Form I-9.
Due: May 29, 2012 11:59 PM ET
Federal Register: www.regulations.gov
Document ID: USCIS-2006-0068-0012
1. Go to www.regulations.gov
2. Enter USCIS-2006-0068-0012 in the search box,
4. Click Comment Now.
For reference, below are the comments I submitted.
1. Enhanced instructions are good. However, the following information should also be provided.
– specify which address is to be entered if the employee and/or preparer/translator
does not live in the U.S. and has an international address.
and Telephone Number – indicate who (e.g., USCIS, ICE, DOJ OSC) will use this information,
for what specific purposes it will be used, for what specific purposes it will not
be used, that the information will be submitted to DHS if the employer uses E-Verify,
and what an individual is to do if the information changes.
– the instructions on Form I-9 and in the Handbook for Employers (M-274) must be clear
The M-274 indicates that the Preparer/Translator
block should be completed ONLY if someone does all of the following:
the form to the employee, AND
the employee in completing Section 1, AND
the employee sign the form.
The Form I-9 indicates that the Preparer/Translator
block should be completed if someone does just one of the following:
employee need the instructions or responses translated, OR
other than the employee fills out the information blocks, OR
with disabilities needs additional assistance.
states the following: “If the employee cannot complete Section 1 without assistance
or if he or she needs Form I-9 translated, someone may assist him or her. The preparer
or translator must read the form to the employee, assist him or her in completing
Section 1, and have the employee sign or mark the form in the appropriate place. The
preparer or translator must then complete the Preparer and/or Translator Certification
block on Form I-9.”
I-9 states the following: “The Preparer/Translator Certification must be completed
if the employee requires assistance to complete Section 1 (e.g., the employee need
the instructions or responses translated, someone other than the employee fills out
the information blocks, or someone with disabilities needs additional assistance).
The employee must still sign Section 1.”
1 – Specify who (employee, employer, preparer) may enter or modify information in
Section 1 and under what circumstances.
example, a preparer can be the employer. So, can the employer (i.e., preparer) make
changes to Section 1?
does the employer enter the employee’s SSN on Form I-9 for E-Verify purposes when
at the time of hire the employee has applied for a SSN, but the SSN has not been issued?
the employer remediate Section 1 if errors are found during an internal audit? (e.g.,
incorrect and missing information)
Documents – Specify if the employer must be in the physical presence of the employee
when examining document.
Employee Documents – Specify that copying employee documents for E-Verify Photo Matching
purposes does not require the employer to copy documents for all employees.
– Specify what the employer should do if the employee provides other acceptable documentation
in place of the actual document pertaining to the receipt. For example, should the
employer complete a new Form I-9 using the documents the employee provides?
Reduction Act – The current Form I-9 estimates 12 minutes per response and the proposed
I-9 estimates 13 minutes per response. An increase of 1 minute is not enough time
to read and understand the four pages of instruction added with the proposed form.
The table below shows that the number of minutes per response should be closer to
20 minutes than 13 minutes.
Minutes Pages Average
Minutes per Page Form
12 5 2.4 Expires
13 9 1.4 Proposed
21.6 9 2.4 Proposed
7. The proposed Form I-9 is twice the size of the current form (two pages vs. 1 page), which
doubles the storage space required to maintain the forms by either paper or electronic
8. The proposed Form I-9 increases the cost to employers by doubling the costs for paper,
ink, hardware, storage, staples/paper clips, shipping, and destruction (when a new
form replaces the existing form).
9. For employers and agents who scan paper Forms I-9 the proposed Form I-9 increases the
level of difficulty and related costs by requiring a minimum of two pages instead
of one to be scanned.
10. The proposed Form I-9 increases the employer’s level of difficulty for completing the
the amount of information to be entered,
the employer to switch between pages to verify information in Section 1 with information
entered Section 1 (e.g., name, SSN, birth date, Alien #, I-94 #, etc.)
11. The proposed Form I-9 increases the employer’s cost when an employee must be reverified
multiple times since the process requires the employer to copy two pages instead of
12. The proposed Form I-9 increases the employer’s liability and training costs since now
there are two pages to the form and the chances of the employer losing one of the
pages is increased.
13. The proposed Form I-9 increases the level of difficulty for internal and external audits
since there is more paper for the auditor to process.
14. The proposed Form I-9 increases the employer’s and the employee’s risk of a breach of
privacy and security by collecting unnecessary employee information (phone and email)
in Section 1, which makes the government appear to be promoting a ‘big brother’ presence.
15. There is a separation between the Form I-9 and E-Verify that is not made clear to the employer
or the employer. The employer does not normally provide Forms I-9 to the federal government.
Therefore, the federal government will not receive phone number and email addresses
for employees unless the employer:
a. Uses E-Verify. Even if the employer uses E-Verify, the employer is only required to use
E-Verify for all new hires in a participating location. Therefore, it’s possible that
not all employees will have the potential for the federal government to know their
phone number and/or e-mail address. This is or at least gives the appearance of the
process being unnecessarily invasive and potentially discriminatory.
b. Is audited by ICE. In this case, only employees subject to the audit and optionally entered
their phone number and/or e-mail address in Section 1 will allow the federal government
to know this information.
16. Is the plan to update E-Verify to prompt for the employee’s phone number and email address?
If so, is the employer obligated to enter such information if it is populated on the
Form I-9? Or, can the employer opt to not enter such information?
17. There is no reason for DHS to collect an employee’s phone number and/or e-mail address on
Form I-9 unless the federal government intends to pro-actively use such information
to an employer’s detriment. For example, absent an employee inquiry the federal government
has no need to contact an employee about the employee’s immigration status. The employee
will have knowledge of their immigration status based on a) successful completion
of Form I-9, b) the fact that the employee is still working, c) the fact that the
employee received an E-Verify TNC, d) genuine documentation issued by the federal
government, e) the employee’s use of E-Verify Self Check.
18. There is no reason for DHS to collect an employee’s phone number and/or e-mail address on
Form I-9 to provide such information to allow DOJ/OSC contact employee regarding an
issue because the employee should first contact DOJ/OSC to register compliant or submitting
a question before DOJ/OSC would get involved. The employee can provide their phone
number and/or e-mail address to DOJ/OSC upon registering a complaint or submitting
a question. There is no purpose other than pro-active action for this information
to be collected prior to the employee contacting DOJ/OSC.
19. There is no process defined for individuals to update the federal government when phone
numbers and/or e-mail addresses change as they commonly do. This means that the information,
if collected by the federal government, is not necessarily current or reliable. So,
is the federal government going to be collecting and retaining obsolete information?
Phone numbers and/or e-mail addresses can be periodically recycled as they are changed.
This means that the information retained by the federal government may actually relate
to an individual other than the individual for whom it was originally captured.
20. Does the federal government intend to validate the employee’s information including phone
number and/or e-mail address when submitted to E-Verify and afterward for confirmation?
21. What about the entry of international phone numbers on Form I-9? Is this permitted? If
so, what additional information is required for international phone numbers? The Section
1 filed for phone number is too small to accommodate an international phone number.
22. Are there any limitations on the type of email address that can be entered? For example,
can the employee be held liable for entering invalid data or data that changes over
time? Can the employer pre-fill the phone number and/or e-mail address in Section
1 with the employee’s company information if the employer issues phones and/or e-mail
addresses to employees?
23. It should be noted that the Form I-9 and E-Verify are being more closely aligned. Therefore,
since E-Verify requires that the E-Verify case number be entered on Form I-9, the
Form I-9 should have a space for the E-Verify case number in Section 2 and Section
3 (for rehires).
24. Will there be any changes to the E-Verify Tentative Nonconfirmation (TNC) documents to
include the additional information being added in the proposed Form I-9?
25. The following font and text inconsistencies on the proposed Form I-9 should be addressed.
a. More vertical room should be provided to the fields in Section 1 to allow for remediation.
b. The term (optional) when referring to E-Mail Address and Telephone Number should be italicized
‘(optional)’to be consistent with the format
of any other parenthetical on the form.
c. The phrase ‘if applicable’ in the Maiden Name field should be an italicized parenthetical
to be consistent. (e.g., Maiden Name (if applicable))
d. The vertical position lines in the U.S. Social Security Number field should be shorter
to facilitate remediation within the field.
e. It should be anticipated that the field size for E-Mail Address and Telephone Number
will be inadequate to accommodate the information to be entered. At least the E-Mail
Address field and perhaps both fields should be positioned on a separate line.
parenthetical should be consistent in the use of italics.
g. The use of the triangle arrow instead of a colon should be consistent for all fields on
the form rather than what appears to be random use.
h. The use of field names in all sections should be standardized (above the field, in the
field, and the use of a colon after a field name) and consistent to reduce confusion.
i. In Section 2, the phrase ‘month/day/year’ for entering the expiration date for an alien
should be ‘mm/dd/yyyy’ to be consistent with similar fields on the form.
j. In Section 1, the Date of Birth field and all other date fields should include the ‘/’
separators for mm, dd, and yyyy to be consistent with the vertical position lines
in the U.S. Social Security Number field and other fields for entering document numbers.
k. There should be instructions added to the Alien #/USCIS # fields indicating the valid field
lengths that can be entered. Employees and employers may become confused when the
number on the employee’s document is less than nine digits. The letter ‘A’ should
be shown on the form to eliminate the employee from entering it on the form and then
not having enough spaces to enter their nine-digit number.
l. There should be instructions added to the I-94 # field indicating that eleven characters
must be entered.
m. The instructions should include information to explain the meaning and use of the ‘3-D
Barcode area at the bottom of Section 1.
n. In Section 2, the following text changes should be made.
title should be Document Title
authority should be Issuing Authority
font for ‘(mm/dd/yyyy)’ used in the Date
of Rehire field is not consistent with the rest of the form.
o. In Section 2, removing the hire date from the certification statement is a good thind.
However, the use of the phrase ‘The employee’s first day of work for pay (mm/dd/yyyy):’
can cause confusion.
i. This line does not need to be a bold font.
ii. What if the date entered turns out to not be the employee’s first day of work for pay?
(e.g., the employee is called in early or is ill and cannot start on time)
iii. Is there any requirement that the hire date in Section 2 or Section 3 match the employee’s
hire date in the employer’s HR/Payroll system?
iv. Should the employer change the hire date on Form I-9 if the employee starts before or after
the hire date?
v. Perhaps the phrase should be change to ‘The employee’s estimated first day of work for pay
(mm/dd/yyyy):’ or ‘The employee’s anticipated first day of work for pay (mm/dd/yyyy):’
to lessen any potential confusion and eliminate the need for changing the hire date
if the employee’s start date changes.
This weblog is sponsored by TALX.
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