Copland and Brenner

Table of Contents

1. Use of Amended I-9 Mandatory by December 26, 2007
2. In Brief: Recent Developments

1. Use of Amended I-9 Mandatory by December 26, 2007

   On November 7, U.S. Citizenship and Immigration Services (“USCIS”) issued an Update on its web site (www.uscis.gov) stating that a revised Form I-9 was available for use. While the Update indicated that the new Form I-9 was “the only version of the form that is valid for use” effective November 7, it also stated that the agency would “publish a Notice in the Federal Register that provides employers with a 30-day period, beginning on date of publication of the Notice, to transition to the new Form I-9.”

   In a Fact Sheet issued the same day, USCIS noted that the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) mandated a reduction in the number of documents that employers may accept from newly hired employees during the employment eligibility verification process. In 1997, the former Immigration and Naturalization Service (INS) published an interim final rule in the Federal Register eliminating some of the documents IIRIRA slated for removal. However, Form I-9 was not updated to reflect the revised List of Acceptable Documents at that time. USCIS has revised Form I-9 to bring it into compliance with the 1997 regulation as a first step toward achieving the document reduction goals set out in IIRIRA and as a further step in its ongoing work toward reducing the number of documents used to confirm identity and work eligibility. The most significant change to the revised Form I-9 is the elimination of five documents from List A of the List of Acceptable Documents.”

   Differently stated, IIRIRA was enacted on September 30, 1996. The interim regulation of the legacy INS was published on September 30, 1997. Because the agency failed to amend Form I-9 when the interim regulation was published, the form has provided employers with an outdated, incorrect list of acceptable documents for more than 11 years .

   The agency managed on November 26, 2007 to finally notify the public of its “first step toward achieving the document reduction goals set out in IIRIRA,” by publishing a Notice in the Federal Register concerning the “Introduction of the Amended Form I-9 and the New Handbook for Employers.” The Notice, which includes the new Form I-9, but does not include the new employer handbook, may be found online at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007
   /pdf/07-5790.pdf. The Handbook for Employers, Instructions for Completing the Form I-9 , publication M-274 (Rev. 11/01/2007) N, is on the USCIS web site at http://www.uscis.gov/files/nativedocuments/m-274.pdf.

   The Notice, which was effective upon publication, provides employers with a 30-day period to transition to the new Form I-9: “The Department of Homeland Security will not seek penalties against an employer for using a previous version of the Form I-9 on or before December 26, 2007.” Employers who fail to use the revised form I-9 after December 26, 2007, therefore, will be subject to applicable penalties. The amended Form I-9 bears a revision date of June 5, 2007, which is printed as “(Rev. 06/05/07)N” on the lower right corner of the form.

   Without acknowledging the agency’s own failure, the Notice states that “List A on the newly amended Form I–9 has been the regulatory List A since 1997, and, therefore, employers should not have been accepting documents not included in the regulatory list.” However, “[g]iven the discrepancy between the Form I–9 and the regulations,…the [legacy INS and subsequently the DHS] withheld enforcement of civil money penalties for violations associated with the changes made by the 1997 interim rule as a temporary transitional measure….With an amended Form I–9 now available that includes the correct List A, that policy is no longer necessary. Therefore, DHS has determined that the non-enforcement policy will cease as of December 26, 2007. ”

   In finally conforming to IIRIRA, the new Form I-9 reflects that five documents have been removed from List A documents. The documents are no longer acceptable because they lack sufficient features to help deter counterfeiting, tampering, and fraud. Accordingly, as of December 27, 2007, the following documents no longer establish proof of an employee's identity and employment eligibility and cannot be accepted by an employer in connection with completing Form I-9:

   - Certificate of U.S. Citizenship (Form N-560 or N-570)
   - Certificate of Naturalization (Form N-550 or N-570)
   - Alien Registration Receipt Card ( applies only to the earlier version , Form I-151)
   - unexpired Reentry Permit (Form I-327)
   - unexpired Refugee Travel Document (Form I-571)

   The most recent version of the Employment Authorization Document (Form I-766) was added as a List A document. Accordingly, the revised List A now includes only:

   - U.S. passport (unexpired or expired)
   - Permanent Resident Card or Alien Registration Receipt Card ( applies to the current version , Form I-551)
   - unexpired foreign passport with a temporary I-551 stamp
   - unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B)
   - 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 the employer

   The new Form I-9 "now instructs employees that providing their Social Security number in Section 1 of the form is voluntary" under the Privacy Act. "However, employees must provide their Social Security number in section 1 of the form if their employer participates in E-Verify (the employment eligibility verification program formerly known as Basic Pilot or EEV), as provided by section 403(a)(1)(A) of IIRIRA. Moreover, for employees who present their Social Security account number card to their employer as evidence that they are authorized to work in the United States, the employer must record the Social Security Account number in section 2 of the Form I-9."

   It is important to note that "employers do not need to complete the amended Form I-9 for current employees for whom there is already a properly completed Form I-9 on file." In fact, "unnecessary verification may violate the [Immigration and Nationality Act's] antidiscrimination provision, section 274B of the INA." However, employers must use the revised Form I-9 "for any reverification of employment authorization conducted on or after December 26, 2007" when the Form I-9 indicates that the employee's work authorization will expire.

   Both the revised form and the Handbook for Employers, Instructions for Completing the Form I-9 are available online at www.uscis.gov.

2. In Brief: Recent Developments

   FBI Name Check Changes: The American Immigration Lawyers Association has advised its members that USCIS and the Federal Bureau of Investigation are changing some aspects of the name check process, “with the expected result that a large proportion of the backlog should be cleared within six months.” Investigations will continue to delay some checks, but “that number should represent a small proportion of the numbers previously delayed.” (AILA InfoNet Doc. No. 07113061, Nov. 30, 2007).

   Fingerprint Collection Expanding at U.S. Ports of Entry: On November 29, the DHS announced it was commencing a transition to collect ten digital fingerprints rather than only two from “international visitors to the United States.” The transition is part of the DHS US-VISIT program, which “provides biometrics-based identity management services – collection, storage and analysis of biometric data – to the immigration and border management, law enforcement and intelligence communities.” The capturing of biometrics (which includes not only fingerprints, but a traveler’s photograph as well) is the “most visible part of the program,” though not the only part. Data gathered is “checked against information about known or suspected terrorists, immigration violators and criminals.”

   Initial deployment of the ten-print transition was at Washington Dulles International Airport, with nine other U.S. cities to follow in early 2008: Boston Logan International Airport (Boston, MA), Chicago O’Hare International Airport (Chicago, IL), Detroit Metropolitan Wayne County Airport (Detroit, MI), Hartsfield-Jackson Atlanta International Airport (Atlanta, GA), George Bush Houston Intercontinental Airport (Houston, Texas), Miami International Airport (Miami, FL), John F. Kennedy International Airport (New York, NY), Orlando International Airport (Orlando, FL), and San Francisco International Airport (San Francisco, CA).

   DHS plans to replace all existing two-print scanners with ten-print versions at U.S. ports of entry over the next year. The Department of State is already using the ten-print scanners at most of its visa-issuing consular posts, and will complete its deployment of the new technology worldwide by the end of the year.

   USCIS Delays Continue due to Filing Surge: In a recent Advisory on Processing Times , posted on the USCIS web site at http://www.uscis.gov/portal/site/uscis, the agency stated that it “has received a significant increase in the number of applications filed. In July and August, nearly 2.5 million applications and petitions of all types were received. This compares to 1.2 million applications and petitions received in the same time period last year. This fiscal year, we received 1.4 million applications for naturalization; nearly double the volume we received the year before.” And, the Advisory stated, even though the agency is hiring approximately 1,500 new employees, “average processing times for certain application types may become longer. In particular, naturalization applications filed after June 1, 2007 may take approximately 16 -18 months to process.”

   It is not just overall processing times that are suffering; agency issuance of receipt notices has lagged, in some cases, for months after filing. On November 30, USCIS confirmed on its web site that “processing of fee payments and entry of cases into our tracking system remains behind schedule due to the tremendous increase in the number of applications filed. As a result, applicants are experiencing delays in receiving notices of receipt.” To keep petitioners and applicants informed of its progress in addressing the backlog, the agency will issue weekly updates on its web site indicating that it has completed initial data entry and issued receipt notices for applications and petitions received on or before the dates specified.

   I-130 Filings Centralized at Lockbox: By USCIS Update issued on November 30, filing instructions for a stand-alone Form I-130 (Petition for Alien Relative) have changed. Effective December 3, 2007, all applicants filing stand-alone Form I-130s are "encouraged" to file their petitions with the Chicago Lockbox rather than a USCIS Service Center. There are two separate Post Office Box addresses for such filings, and the appropriate address depends upon the petitioner's place of residence in the U.S.A. The Update , with further details and address information, is on the agency's web site at http://www.uscis.gov/files/pressrelease/I130FilingUpdate113007.pdf.

   DV-2008 Visa Lottery Results Announced: On November 30, the Department of State announced that the Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the winners of the DV-2008 diversity lottery. Over 6.4 million qualified entries received during the 60-day application period that ran from 12:00 AM on October 4, 2006, until midnight, December 3, 2006. Approximately 96,000 applicants have been registered and notified, and must complete processing during fiscal year 2008 (October 1, 2007 until September 30, 2008). The DOS Media Note setting forth the results is online at http://www.state.gov/r/pa/prs/ps/2007/nov/96044.htm.