The Department of Homeland Security's agency, U.S. Citizenship and Immigration Services (USCIS), has released a revised Form I-9, the form used by employers to verify the identity and employment eligibility of all new hires. The previous version, dating back to 1991, had not been revised to reflect changes made to the I-9 verification process by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and later implemented by a 1997 regulation, which reduced the number and types of documents an individual might present to establish authorization to work legally in the United States. Because of this, the documentation listed on the old I-9 as permissible placed employers in the difficult position of having to comply with the law using a form that did not accurately represent the law as it currently existed. Moreover, many employers likely did not know they were accepting documents that were barred under the 1997 regulation. The new version helps to clear up that confusion and brings the I-9 into conformity with the changes to immigration law that had occurred in the intervening years.
On November 26, 2007, the USCIS issued a formal notice on the new I-9 in the Federal Register, which announced that all U.S. employers are required to use the new I-9 for all employees hired in the United States on or after Wednesday, December 26, 2007. Current employees who do not need to re-verify are not required to complete a new I-9. If, however, an employer needs to re-verify an existing employee whose I-9 was completed on the old version and whose work authorizing document has now expired, the new version of the I-9 must be used, thus completing a new form altogether rather than using the bottom portion of the old version.
With regard to the content of the new I-9, employers primarily should be concerned with changes to "List A" of the List of Acceptable Documents that employees can present to establish both identity and employment eligibility. The authorization documents that are included as acceptable on the new List A are:
- U.S. Passport (unexpired or expired);
- Permanent Resident Card or Alien Registration Receipt Card (Form I-551);
- Unexpired foreign passport with a temporary I-551 stamp;
- Unexpired Employment Authorization Document that contains a photograph (Forms I-688, I-688A, I-688B or I-766); and
- Unexpired foreign passport with an unexpired "Arrival-Departure Record" (Form I-94), bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, if that status authorizes the alien to work for a specific employer.
Five documents that were acceptable under the old I-9 were taken off List A and are no longer acceptable forms of proof. These include:
- Certificate of U.S. Citizenship (Form N-560 or N-561);
- Certificate of Naturalization (Form N-550 or N-570);
- Alien Registration Receipt Card, also known as a "green card" (Form I-151);
- Unexpired Re-entry Permit (Form I-327); and
- Unexpired Refugee Travel Document (Form I-571).
In announcing the new form, USCIS said that the five documents were removed from the verification list "because they lack sufficient features to help deter counterfeiting, tampering, and fraud." To be clear, the revisions to Form I-9 are only within List A. Thus, new hires may continue to prove their identity and employment eligibility by providing acceptable credentials from two other I-9 rosters that have not changed -- "List B, Documents that Establish Identity" and "List C, Documents that Establish Employment Eligibility."
In addition to the changes in the documents accepted for verification, the new I-9 specifically indicates that an employee is not obligated to provide his or her Social Security number in Section 1 of the form, unless he or she is employed by an employer who participates in the E-Verify Program. The revised form also gives greater prominence to the anti-discrimination statement than the old I-9.
Once the new I-9 formally goes into effect, employers will be legally barred from using prior versions of the I-9 form, and will be subject to penalties if they accept one of the five documents that have been removed from List A. While use of the previous version of the I-9 up to December 25, 2007 will not expose an employer to any liability, employers can and should start to make the transition to the new I-9 now and ease the burden of ensuring compliance with the current law by the December 26, 2007 enforcement date. Both the revised I-9, which bears the notation "(Rev. 06/05/07) N" in the lower right hand corner of the form, and the revised "Handbook for Employers, Instructions for Completing the Form I-9" are available online at www.uscis.gov.
In announcing the revised form, USCIS also advised that it intends to make more profound changes to the overall I-9 process in 2008 and issue another version of the I-9 at that time. Please feel free to contact any of our attorneys practicing labor and employment law with any questions regarding I-9 compliance and other related hiring issues.
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