Revised Form I-9 Released

Lookout’s Development Efforts Already Underway

U.S. Citizenship and Immigration Services (USCIS) announced the newly revised Form I-9 is now approved for use. The announcement includes an implementation grace period through May 7, 2013 to allow employers to revise their internal processes to incorporate the use of the new form. The new Form I-9 has extended Section 1 to request additional information from the new hire. The additional information requested includes, telephone, email, and foreign passport information, where applicable. In addition, the Form I-9 itself now consists of 2 pages. The Federal Register Notice (78 FR 15030) indicates that the new Form I-9 may be obtained by visiting the I-9 Central website, USCIS has also released a new corresponding Handbook for Employers (Form M-274) as of March 8, 2013.

Lookout’s development efforts are well underway. Lookout Services’ development team began programming these changes late last year with the expectation that the revised Form I-9 would eventually receive approval. However, initial review indicates that USCIS has made additional changes to the revised Form I-9 since the draft Form I-9 was issued in October of 2012. Our business and development team will be reviewing these changes and planning for their inclusion in our development efforts. However, Lookout is committed to publishing the new Form I-9 before the grace period ends. Lookout will continue to provide updates as the final development effort progresses.

The Human Element

As I-9 Program Administrators, you know the challenges presented by the human element. Electronic Form I-9 systems with real-time error-checking go a long way toward eliminating the issues created by the human element. But, even with error-checking software in place, there are still certain pitfalls that can occur.

  • Your I-9 Processor ignores the system alerts and prompts resulting in an erroneously completed Form I-9.
  • Your I-9 Processor does not know what to do when the new hire fails to present documents within 3 days of hire.
  • Your I-9 Processor does not know what to do with an incomplete Form I-9 if the new hire quits before the I-9 is completed.
  • Your I-9 Processor does not know what to do with an incomplete Form I-9 if the new hire never begins work.

Due to unique factors in your organization, many of these pitfalls require management and legal input to determine the best action to take. These determinations should be described in an I-9 policy manual and taught to I-9 processors during training sessions. In addition, a Program Administrator should be responsible for oversight and management of the organizations I-9 processing and policy enforcement.

Once again, electronic Form I-9 systems add efficiency to the oversight of Form I-9 processing. The ability to pull reports and search for specific events saves significant time. However, if your Program Administrator is not utilizing the reports regularly and effectively, your organization may find compliance issues continue to be overlooked.

Administrators should perform the following functions on a systematic basis to insure I-9 Policy and Program effectiveness.

  • Review all Form I-9s containing errors
  • Delete I-9s for new hires who never began work
  • Terminate I-9s for new hires who failed to provide documents to complete I-9
  • Resolve any curable errors, i.e., typos, conflicts of status, etc, for active employees
  • Compare Payroll records to Form I-9 records
  • Update Termination dates
  • Purge Retention Expired Form I-9s

If you require instruction or assistance on how to perform these tasks in the Lookout system, please contact Customer Support at 713-668-6200 x2. We look forward to the opportunity to assist you in managing the human element in your I-9 processing.

Details Behind the TNC

The “Tentative Non-Confirmation” or TNC is the 2nd most common response users see from the E-Verify system following the “Authorized to Work” response. The reason this is a “tentative” non-confirmation is that the system sees some commonality between the employee’s information and a record in the system. However, there is not enough coinciding information to allow for a match and a definitive system response. It is extremely likely in these cases that a typo exists somewhere in the employee’s data.

A TNC is typically the result of a clerical error in Section 1 of Form I-9. It is important that you double or even triple check the employee’s personal information in these cases before you continue processing the E-Verify case. Often, a typo in the entered information will halt the confirmation. Here are a few common mistakes to look for:

  • Last name/first name backwards
  • Social Security number typed wrong
  • Incorrect date of birth

These seem like very simple errors not to make, but that is exactly why they are made. Whether caused by rushing, complacency, or unfamiliarity with the computer system these mistakes are common; so look for them.

After making corrections, return to E-Verify and continue processing the case. This will update E-Verify with the corrected information and hopefully change the case status to authorized. But remember, typos and human error can occur on both sides of the system. If you’ve checked and rechecked the employee’s information and can’t find a mistake, it is possible that the error exists on the government’s side. If you determine that the information in Section 1 is accurate and that the government’s data was entered wrong the employee will need to “Contest” their case status.

The final case result would determine the procedure to follow to “contest” the findings. Simply follow the on-screen instructions and print the necessary documents.

We will cover some of these case results in more detail a future issues.

Year-End Compliance Check

Here are 5 things that you can do as the year comes to a close to evaluate compliance with E-Verify and Form I-9. See how your end users are doing and how your Compliance Program performed in 2012. We invite you to contact us for assistance with these or any other matters you discover during your review.

  • Review all Open E-verify cases: Identify any cases which have been open for more than 10 days, discover the reasons for untimely completion, resolve issues, and complete cases.
  • Update Termination Dates: Request termination dates from payroll, and batch process termination dates to I-9 records.
  • Match I-9s and Payroll: Request employee list from payroll, batch process Matching I-9 records against employee list.
  • Review Three Days Section 2 Unsigned Report: Identify unsigned I-9 Records, discover the reasons for untimely completion, resolve issues, and complete signatures.
  • Review Retention Expired Records: Identify retention expired records using the Retention Report, then notify Lookout for assistance with record removal.

Proposed Changes to the E-Verify MOU

On September 11, 2012, DHS announced proposed changes to the E-Verify MOU in the Federal Register (77 FR 55858). The Federal Register notice provides a 60-day comment period ending November 13, 2012. There are 6 versions of the new proposed MOU depending upon how access to E-Verify is gained. Each of the proposed MOUs may be viewed via the eRulemaking Portal, simply scroll to the bottom of the docket screen.

The proposed MOU includes several changes. The most significant of these changes are outlined below.

Article V. Section F. PENALTIES

  • The [Web Services Agent, Web Services Employer, etc.] agrees that any failure on its part to comply with the terms of the MOU may result in account suspension, termination, or other adverse action.
  • DHS is not liable for any financial losses to [Agent/Employer] or any other party as a result of account suspension or termination.

Article VI. Section B. TERMINATION

2. …DHS may terminate this MOU…, with or without notice at any time if deemed necessary because of requirements of law or policy, or ….breach of system integrity…, or a failure on the party of either party to comply with established E-verify procedures and/or legal requirements…the employer understands that if it is in a state where E-Verify is mandatory, termination of this MOU by any party may negatively affect the Employer’s business.

For employers using E-Verify in an E-Verify required state, these changes may have business ending consequences. The MOU does not outline the level or frequency of non-compliance issues which would result in suspension or termination. Furthermore, the MOU does not outline any means by which an employer can redress the non-compliance issues in order to maintain the employer’s E-Verify participation. Likewise, the MOU does not provide any process by which an employer can appeal the decision of DHS with respect to suspension or termination of the employer’s E-Verify account.

Lookout Services encourages employers to consider the proposed changes and to submit comments on the proposed MOU. Comments may be submitted via email ( ), as well as, the eRulemaking Portal. The comment period ends November 13, 2012.

Field Guidance on Electronically Generated Forms I-9

Although the regulations for the Electronic Generation, Signature, and Storage of Form I-9 have been in existence for several years, Department of Homeland Security recently released a Memorandum which provides guidance to field officers conducting audits of Forms I-9 created in electronic I-9 systems. This guidance has prompted auditors to engage in not only an audit of Form I-9, but also a review of how electronic generation, signature, and storage are accomplished in the Form I-9 system.

Employers may be asked to complete questionnaires which provide insight into the workings of the electronic system. Auditors are also likely to request a real-time demonstration of the Form I-9 process using the electronic system. Both requests are designed to allow the auditor to assess the electronic system’s compliance with the regulations.

The regulations governing electronic processing of Form I-9 are found at 8 CFR section 274a.2(e), (f), (g), and (i). These requirements are also addressed in the Handbook for Employers (M-274) beginning on page 24.

USCIS Issues E-Verify Self-Assessment Guide

Recently, the Department of Homeland Security published The E-Verify Self-Assessment Guide for Direct Access Users (M-1044) or Web Services Users (M-1043). The Self-Assessment Guide is designed to assist participating employers in complying with the user requirements of E-Verify and to help improve participants’ overall use of the E-Verify program.

“Self-assessment demonstrates a company’s commitment to compliance by internally reviewing, detecting and preventing E-Verify misuse.” E-Verify Self-Assessment Guide, (M-1043 Rev. 06/2012), p. 1. Even employers who participate in E-Verify via a Designated Agent share the responsibility for their E-Verify program participation. The Self-Assessment Guide highlights many common mistakes such as:

  • Creating duplicate cases for the same employee
  • Verifying employees hired before November 7, 1986
  • Immediately terminating employees who receive a Tentative Nonconfirmation
  • Failure to submit a case by the third day of work for pay
  • Submitting E-Verify cases for hires that pre-date E-Verify enrollment

See Id., p. 2. Insuring that employee rights are protected is one of USCIS’ top priorities. Participants are required to confirm that the Right to Work and E-Verify Participation posters are properly displayed. Participants are also repeatedly reminded to review E-Verify notices with the employee in private and to provide the notice in an alternative language if the employee requests it. (The notices are available in 17 alternative languages.) In addition, participants and users are instructed to take all appropriate measures to safeguard the employee’s personal data.

Furthermore, USCIS instructs employers to determine whether end users are following proper procedures. The Self-Assessment Guide continuously reminds employers of the importance of closing the E-Verify case. Employers are also instructed to confirm that notices are printed, signed, and maintained with the Form I-9 and periodically check to confirm that all cases are resolved.

Thus, Lookout Services strongly recommends that E-Verify participants use the Self-Assessment Guide to evaluate your implementation of the E-Verify program. Lookout Services’ customers are encouraged to use this in conjunction with the Lookout Services Companion to the Self-Assessment Guide found under the References section of our application.

Form I-9 Changes Still Pending

In March, USCIS proposed some significant changes to Form I-9. These changes included adding employee phone number and email as optional fields in Section 1. The proposal also called for requesting additional details in Section 1 for Aliens Authorized to Work in the United States, such as foreign passport number and country of issuance. A significant number of comments were received during the comment period. Common submissions signaled concerns about employee confusion during Section 1 completion and the additional time required for processing the two page form. As of this writing, the proposed form remains pending. USCIS has instructed employers to continue using Form I-9 (Rev. 08/07/09) Y despite the form’s expiration date of 08/31/2012.