Feds delay new Form I-9

Don't start using the new Form I-9 just yet.

Employers were originally told to begin using a new I-9 form beginning on Feb. 2, 2009. But the U.S. Citizenship and Immigration Services (USCIS) just announced a two-month delay to that ruling. Bottom line: Employers should continue using the current I-9 form until April 3. Both forms are listed at the  USCIS web site.

Since 1986, employers have been required to fill out an Employment Eligibility Verification (I-9) form within three days after hiring each new employee. The USCIS issued a revised I-9 in December 2008 and told employers to begin using it on Feb. 2. But when President Obama took office last month, he put a halt to pending Bush administration regulations. Did that include the new I-9? It wasn't clear until the USCIS said "yes" last Friday.

The Department of Homeland Security (DHS) says the delay "will provide DHS with an opportunity for further consideration of the rule and also allows the public additional time to submit comments." A notice announcing the delay was transmitted to the Federal Register.  In addition, USCIS has reopened the public comment period for 30 days, until March 4, 2009.

What's new on the new form? First, the revised I-9 makes clear that employees can't show expired documents as identification.

"The biggest difference in the revised Form I-9 is that all documents presented during the verification process must be unexpired, says the USCIS. Expired documents, the agency says, are more prone to tampering and fraudulent use.

Plus, the new I-9 again reduces the number of acceptable documents that employees can show for identification and work-authorization purposes. "An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process, says the USCIS.

This 60-day delay means U.S. employers must begin using the revised I-9 form—for new hires and to reverify employees with expiring documents—starting no later than April 3. Employers that continue to use the current edition of the I-9 form (dated 06/05/2007) on or after that date may be subject to civil money penalties.

Specifics on the I-9 revisions: The new rule eliminates three documents from the list of approved documents that employees can present to verify both their identity and employment (List A): Forms I-688, I-688A and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document). USCIS no longer issues these cards, and all that were in circulation have expired.

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. The rule also adds to List 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).

Note: The USCIS Handbook for Employers, Instructions for Completing the Form I-9 (M-274) will be updated to reflect these changes.

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Q & A: The revised Employment Eligibility Verification (I-9) Form

After this new 60-day delay, employers will be required to use the revised I-9 form for all new hires and to reverify any employee with expiring employment authorization beginning April 3, 2009.  The current edition of the Form I-9, dated 06/05/2007, will no longer be valid after that date. All employers are required to verify the identity and employment authorization of each person they hire for employment in the United States.

Q. What is the difference between the revised Form I-9 and the old one?

A. The biggest difference in the revised Form I-9 is that all documents presented during the verification process must be unexpired. Other than several technical updates, the following documents have been added or removed.

Two documents have been added to List A (Documents That Establish Both Identity and Employment Authorization) on the List of Acceptable Documents:

• A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp

• A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

Although prior regulations refer to temporary I-551 "stamps," the U.S. State Department for several years has been affixing machine-readable immigrant visas (MRIVs) that contain a pre-printed temporary I-551 notation in the foreign passports of aliens immigrating to the United States.  DHS therefore is updating the regulations to reflect this alternate temporary I-551 document with the pre-printed temporary I-551 notation on MRIVs.

Three documents were removed from List A of the List of Acceptable Documents:

• Form I-688, Temporary Resident Card
• Form I-688A, Employment Authorization Card
• Form I-688B, Employment Authorization Card. 

Q. Where can I obtain a copy of the revised Form I-9?

A. The revised Form I-9 can be found at the USCIS web site, www.uscis.gov/i-9 (scroll to bottom of page). Paper copies of the Form I-9 can be ordered by calling USCIS at (800) 870-3676. 

Q. Why can't I present an expired document?

A. DHS wants to ensure that documents presented for use in the Form I-9 process are valid and reliably establish both identity and employment authorization. Expired documents may not portray a valid status. They are also prone to tampering and fraudulent use.

This change takes into account the limits placed on these documents by their issuing authorities. If a document does not contain an expiration date, such as a Social Security card, it is considered unexpired. 

Q. Why is only one type of employment authorization document left in List A?

A. Forms I-688, I-688A and I-688B are older employment authorization documents. These are no longer issued and have now expired. 

Q. In Section 1 (Employee Information and Verification) of the revised Form I-9, an employee can now attest to being either a citizen or noncitizen national of the United States. Who is a noncitizen national?

A. Noncitizen nationals are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad. More information on noncitizen U.S. nationals can be found on the State Department web site linked under the "Related Links" section on the upper right-hand side of the page. 

Q. As an employer, can I accept documents that used to be on the Form I-9 but aren't now?

A. No. Beginning April 3, employers may accept only documents listed on the List of Acceptable Documents on the revised Form I-9. When an employee must be reverified because his or her employment authorization has expired, employers should ensure that they use the revised Form I-9 with its new List of Acceptable Documents. An employer may not reverify the employee by completing Section 3 (Updating and Reverification) of the previous version of the Form I-9. 

Q. Are there any changes in the way the revised Form I-9 is completed?

A. No. The revised form should be completed exactly the same way as the old one was. Employers should be mindful of changes to the types of documents that they may accept in Section 2: Employer Review and Verification. 

Q. Is the Form I-9 available in different languages?

A. The Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete the English version and keep it in their records. Employees may also use or ask for a translator/preparer to assist them in completing the form. 

Q. When should employers begin using the revised version of the Form I-9?

A. Employers must use the revised Form I-9 for all new hires (and reverifications) beginning April 3, 2009. The current edition of the I-9 form (which is dated 06/05/2007) will no longer be valid for use as of that date. Employers that continue to use the 06/05/2007 edition of the Form I-9 on or after that date may be subject to civil money penalties. 

Q. Do I need to complete the revised version of the Form I-9 for all my employees or just the new ones?

A. Employers only need to complete the revised version of the I-9 for new employees. Employers should not be completing Forms I-9 for existing employees. However, employers must use the I-9 when their employees require reverification.