The U.S. Citizenship and Immigration Services (USCIS) published a notice of proposed changes to the Form I-9 in the Federal Register on November 24, 2015. The notice’s 60 day public comment period ended on January 25, 2016.  To date, there has been no final notice published.

The purpose behind the proposed changes is USCIS’ attempt to create a “smart” version of the I-9 to reduce user error and make the form easier to complete. The proposed changes include new drop-down menus, field checks and real-time error messages to ensure data integrity by employers completing the I-9 form.

New functionality of the new “smart” I-9 includes the following:

  • Performs logic and data validation tests on various fields to ensure information is entered correctly. For example, the form will confirm that the appropriate number of digits for a social security number or an expiration date field are entered by the user.
  • Allows users to read instructions for specific field on the screen as they are typing. Various “Help” buttons will be available to assist the user with common questions.
  • Allows users to enter additional important information in certain fields rather than requiring them to enter notes manually by hand in the margins of the form.
  • Limits users to choose documents from drop-down menus that include lists of acceptable identification documents.
  • Expands the information section regarding multiple preparers and translators.
  • Clarifies that employees completing Section 1 provide only “other last names used” rather “other names used.”
  • Modifies section 1 to request that the employee enter their Form I-94 number or foreign passport information, rather than both.
  • Separates the instructions from the form. However, employers are still required to present the instructions to the employee completing the form.
  • Generates a quick-response matrix barcode, or QR code, upon printing the form. It is expected that the barcode will be used to facilitate review by government auditors.

Despite all of these technological conveniences, it’s important to note that this proposed version is not an “electronic I-9” as defined in the DHS regulations. The employer using this new “smart” I-9 must still print the I-9 in hard copy, obtain the appropriate handwritten signatures, retain the I-9 as required by law, and track expiration dates for reverification. If the employer is a member of E-Verify, the employer will also need to enter relevant information taken from the I-9 into E-Verify.

Moreover, the new form will not integrate with human resource applications or enable customized workflows which are essential to organizations with distributed workforces and decentralizing hiring. For that reason, the form is most likely designed for smallish employers who only hire a few individuals on a yearly basis.

After USCIS reviews the comments and makes changes it deems appropriate, it will publish a second notice in the Federal Register. After that, the public has 30 days to provide comment before the regulation becomes final.  As of today, no second notice has been published in the Federal Register.

The current edition of the Form I-9 expires on March 31, 2016. Since it is unlikely that the new “smart” form will be issued by April 1, 2016, USCIS will have to extend the validity of the current form.  Employers should continue using the current version of the Form I-9, even past March 31, 2016, even if USCIS’ does not publish a formal notice extending its validity by April 1, 2016, unless USCIS specifically instructs otherwise.


Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or