Wednesday, February 18, 2009

I-9 Documents Acceptable for Employment Eligibility Verification

All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form.

Do not file Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., Department of Homeland Security, Department of Labor, Office of Special Counsel).

U.S. Citizenship and Immigration Services (USCIS) announced that it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on December 17, 2008. The rule streamlines the Employment Eligibility Verification (Form I-9) process. The delay is intended to provide the government with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. A notice announcing this delay has been transmitted to the Federal Register and is scheduled for publication on February 3, 2009. In addition, USCIS has reopened the public comment period (which was to end on February 2, 2009) for 30 days until March 4, 2009.

* Download I-9 (Rev. 06/05/07 N - only for use BEFORE April 3, 2009) (408KB PDF)
* Download I-9 (REV. 02/02/09 N - Only for use On and AFTER April 3, 2009) (444KB PDF)
* Download I-9 (Revisado en 6/5/07 N – para utilizarse sólo ANTES del 3 de abril de 2009) (818KB PDF)
* Download I-9 (Revisado en 02/02/09 N – para utilizarse sólo EN y después del 3 de abril de 2009) (443KB PDF)

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S. The interim final rule will amend regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9.
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USCIS Publishes Interim Final I-9 Rule; New I-9 Form
The interim final rule streamlining the employment eligibility verification (Form I-9) process that the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), announced it submitted to the Federal Register on December 12, 2008, has now been published in the Federal Register along with a copy of the proposed new I-9 form at 73 Fed. Reg. 76505 (Dec. 17, 2008).


The interim final rule amends 8 CFR § 274a.2 to change the term “eligibility” to “authorization” and, in subsection (b)(1)(v), narrows the list of acceptable identity documents and specifies that expired documents are not considered acceptable forms of identification.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A (8 CFR § 274a.2(b)(1)(v)(A)) documents verify identity and employment authorization, List B (8 CFR § 274a.2(b)(1)(v)(B)) documents verify identity only, and List C (8 CFR § 274a.2(b)(1)(v)(C)) documents verify employment authorization only. The interim final rule removes the terms “unexpired” and “expired” from those documents currently listed in the regulations. Rather than modify each acceptable document with the term “unexpired,” the rule imposes a general requirement that all documents must be unexpired. USCIS invites comments on whether this prohibition on the use of expired documents for the Form I-9 should be modified to permit employers to accept List B identity documents that have expired within the last 90 days (or other limited time period) of the date when they are presented to the employer for the Form I-9.

In 8 CFR § 274a.2(b)(1)(v)(A)(3), the rule modifies the reference to temporary I-551 stamps on unexpired foreign passports to include pre-printed temporary I-551 notation on machine-readable immigrant visas (MRIVs); however, since the pre-printed notation is not included on Form I-94s, the rule does not make any changes to regulatory references to temporary I-551 stamps on Form I-94s.

The interim final rule eliminates Forms I-688, I-688A, and I-688B (temporary resident card and older versions of the employment authorization card/document) from List A, new 8 CFR § 274a.2(b)(1)(v)(A). USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 in 8 CFR § 274a.2(b)(1)(v)(A) foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI).

In addition, the rule updates the list of acceptable documents and receipts by including “Form I-94A” next to each reference to the Form I-94, Arrival-Departure Record, new 8 CFR § 274a.2(b)(1)(v)(A)(5) and (b)(1)(vi)(B) and (C). The Form I-94A is nearly identical to the Form I-94 except that all fields are computer-generated rather than being annotated by hand.

The rule replaces the current reference to the List C document “Social Security number card” with the statutory term “Social Security account number card” and revises the restrictions in the acceptability of social security account number cards to track the statutory language, new 8 CFR § 274a.2(b)(1)(v)(C)(1). The rule also corrects the incorrect reference to Forms FS-545 and DS-1350 as “Certification of Birth Aboard” to reflect that the FS-545 is correctly titled “Certification of Birth” and the DS-1350 is correctly titled “Certification of Report of Birth,” 8 CFR § 274a.2(b)(1)(v)(C)(2) and (3). Additionally, the rule replaces references to the former INS with “DHS.”

In implementing the regulatory changes being made by this rule, DHS is also revising the Form I-9 itself. Changes to the Form I-9, in addition to revisions to the list of acceptable documents, include:

• in Section 1, making “citizen of the United States” and “noncitizen national of the United States, as defined in 8 U.S.C. 1408” two separate categories in the employee attestation part of the form

• in Section 1, replacing “An alien authorized to work until __/__/__ (Alien # or Admission _____” with “An alien authorized to work (A# or Admission #_____) until (expiration date, if applicable--month/day/year)__/__/__”

• in the form instructions, including a paragraph that clarifies when employers need to reverify certain employees to read as follows: “Note that some employees may leave the expiration date blank if they are aliens whose work authorization does not expire (e.g., asylees, refugees, certain citizens of the Federated States of Micronesia or the Republic of the Marshall Islands). For such employees, reverification does not apply unless they choose to present in Section 2 evidence of employment authorization that contains an expiration date (e.g., Employment Authorization Document (Form I-766)).”

The revised Form I-9 includes additional changes, such as revisions to the employee attestation section and the addition of the new U.S. passport card to List A.

Employers will have to use the revised Form I-9 for all new hires and to reverify any employee with expiring employment authorization beginning 45 days after publication in the Federal Register. The current version of the Form I-9 (dated June 5, 2007) will no longer be valid after that date.

The interim final rule is effective February 2, 2009. Written comments must reference Department of Homeland Security (DHS) Docket No. USCIS-2008-0001 and must be submitted on or before February 2, 2009, by:

• using the federal eRulemaking Portal: http://www.regulations.gov

• mailing paper, disk, or CD-ROM submissions to Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210

• using hand delivery/courier to U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210; contact phone number: (202) 272-8377

Currently, the first box in that section states: ‘'A citizen or national of the United States.’‘ USCIS states that separating those two groups will eliminate one difficulty that currently exists when prosecuting those who make false claims to U.S. citizenship. USCIS explains that noncitizen nationals of the U.S. are persons born in American Samoa as provided in INA § 308 [8 USCA § 1408]; certain former citizens of the former Trust Territory of the Pacific Islands who relinquished their U.S. citizenship acquired under INA § 301 of Pub. L. No. 94-241 (establishing the Commonwealth of the Northern Mariana Islands) by executing a declaration before an appropriate court that they intended to be noncitizen nationals rather than U.S. citizens; and certain children of noncitizen nationals born abroad, as provided by INA § 308. A definition of noncitizen national is added to the instructions to the Form I-9.

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Revised Form I-9

Form I-9. The revised edition of Form I-9 is dated February 2, 2009, and must be used beginning on that date; the June 5, 2007 version of the form should be used until that time. Both versions of the form are available on USCIS' website.

This revised Form I-9 reflects the changes made by the interim final rule to streamline the employment eligibility verification (Form I-9) process, including the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I-9. The following modifications to the form and its instructions supplement that discussion:

• "eligible" has been changed to "authorized" throughout the form and its instructions

• on page 1 of the instructions under the heading "Section 1, Employee," USCIS has noted that, instead of being completed at the time of hire, this part of the form must be completed no later than the time of hire

• also on page 1 of the instructions, USCIS has added a paragraph concerning noncitizen nationals of the U.S.

• under the "Section 2, Employer," heading on page 1 of the instructions, the agency has noted that (1) employers "cannot specify which document(s) listed on the last page of Form I-9 employees present to establish identity and employment authorization" as "[e]mployees may present any List A document OR a combination of a List B and a List C document"; (2) "receipts showing that a person has applied for an initial grant of employment authorization, or for renewal of employment authorization, are not acceptable" and (3) if photocopies of original documents presented by the employee are made, they must be made for all new hires

• at the top of page 2 of the instructions, a reference to the USCIS Handbook for Employers (Form M-274) has been included as a source for more information

• under the heading "Section 3, Updating and Reverification" on page 2 of the instructions, a note has been added that employers have the option of completing a new Form I-9 instead of section 3 for reverification purposes

• in the USCIS Forms and Information section of the instructions on page 2, USCIS has added its website address and the phone number 1-888-464-2418 as a reference for information about Form I-9 and E-Verify

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