- The federal government released a new Form I-9 July 17 and employers must begin using it within the next two weeks, by Sept. 18. But that form, the second version to take effect this year, could be replaced by yet another variation early next year, according to David J. Garrett, counsel with Nexsen Pruet.
- The potential update will depend on whether the Trump administration decides to advance an Obama-era rule allowing entrepreneurs from other countries to set up shop in the U.S., Garrett told HR Dive. It's unlikely that the administration will want to move forward with the "International Entrepreneur Rule" but, if it does, the government has said it will need to amend the I-9's list of acceptable identification documents to include the paperwork that such entrepreneurs would have.
- The entrepreneur rule was scheduled to take effect in July but is on hold while the U.S. Department of Homeland Security (DHS) determines whether it complies with one of President Donald Trump's executive orders (E.O.) limiting immigration.
The form that takes effect Sept. 18 came just months after employers had to adopt the current version. The recent changes have occurred "at a pace that we haven’t seen in the whole history of Form I-9," Garrett said; and each new change brings increased confusion for employers, he noted.
According to the notice delaying the entrepreneur rule, DHS' U.S. Citizenship and Immigration Services (USCIS) hopes to have everything sorted out by March 14, 2018. The agency repeated that plan in its most recent regulatory agenda: "DHS is currently considering changes to this regulation and assessing it in light of section 11 of Executive Order 13767, Border Security and Immigration Enforcement Improvements," it said. That order requires, among other things, that admission to the U.S. for individuals without the usual visas be granted only on a case-by-case basis and only when an individual demonstrates urgent humanitarian reasons or a significant public benefit that would result from his or her admission.
While similar reviews and delays have been the kiss of death for other rules promulgated by the Obama administration, there's still a chance this one could survive — although Garrett says those chances are diminishing. And that's unfortunate, he said.
“I’m actually hoping that they decide not to rescind it because there can be a significant public benefit" to new businesses being formed, he said; new companies often come with direct job creation, real estate leases and other spending — benefits that the government may well decide are worth the confusion created by a new form.
As always, HR needs to ensure that any paper forms used are the latest version, available from USCIS. For now, that's the one with a footer date of "07/17/17." And for extra assurance that the most up-to-date version is always being used, HR may want to consider whether use of the online version is feasible.