Copland and Brenner

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1. DHS Mandates New Form I-9, Employment Eligibility Verification

1. DHS Mandates New Form I-9, Employment Eligibility Verification

   By notice published in the Federal Register on December 17, 2008, the Department of Homeland Security (“DHS”) issued an interim rule regarding Form I-9. As employers across the country know, or should know, Form I-9 must be completed for all new hires, and must be updated in certain circumstances, to verify workers’ initial or ongoing employment eligibility.

   The summary to the interim rule states that its purpose “is to improve the integrity of the employment verification process so that individuals who are unauthorized to work are prevented from obtaining employment in the United States.” Under the rule, “employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9,” and the lists of acceptable documents are amended.” The rule also includes several technical corrections and updates, and provides a copy of the amended Form I-9 for advance review.

   Unexpired documents: Previously, a List B document or a U.S. passport (a List A document) could be presented by a new hire, or for reverification, even if expired. As noted above, the interim rule mandates that all documents presented by workers must be unexpired. The change was deemed necessary because expired documents “are prone to fraudulent use in the Form I-9 process by aliens seeking unauthorized employment,” in that they “fall prey to counterfeiters who, for a small sum, can substitute unauthorized aliens’ photographs and other identifying information.” The requirement that unexpired documents be presented increases the “likelihood that such documents will contain up-to-date security features that will make them less vulnerable to counterfeiting and fraud.” It also “honors the limits placed by document issuance authorities on their documents.” In making this modification, the interim rule eliminates use of the terms “expired” and “unexpired” as modifiers, and instead “imposes a general requirement that all documents must be unexpired to be acceptable for the Form I-9.”

   Two other points are of note: first, a “document containing no expiration date, such as the Social Security account number card, will be deemed unexpired.” Second, the DHS specifically requests comments as to whether List B identity documents should be acceptable if they expired within 90 days of being presented to an employer, or some other limited period of time.

   Document changes: The following changes have been made regarding List A documents, which establish both identity and employment authorization:

   - the reference to U.S. passport now includes the new “U.S. Passport Card”
   - the reference to temporary I-551 now includes both a “temporary I-551 stamp” and a “temporary I-551 printed notation on a machine-readable visa”
   - Forms I-688, I-688A, and I-688B are removed since they are no longer issued, and the DHS has determined that any such previously issued documents have expired
   - Form I-94A, a computer-generated Form I-94, is added as it relates to working for a specific employer incident to status
   - adds passports from the Federated States of Micronesia or the Republic of the Marshall Islands, with Form I-94 or I-94A indicating nonimmigrant admission, under the compacts of free association between the U.S.A. and those sovereign nations. Those compacts authorize admission to the U.S.A. as nonimmigrants and, remarkably, include “the privilege of residing and working in the United States” in that status

   Terms and terminology: The rule notes that, since the statutory authority for the rule uses the term “employment authorization” rather than “employment eligibility,” the former term replaces the latter wherever it previously appeared on Form I-9. In addition, references to the legacy INS have been replaced with “DHS.”

   Changes to List C documents, which establish employment authorization, relate to terminology regarding the use of “Social Security account number card” and two Department of State documents establishing the birth of a U.S. citizen abroad. These changes make the Form I-9 terms consistent with those used by the Social Security Administration and Department of State.

   As to Social Security cards, the amended regulatory language now tracks that of the statute, which states that a Social Security account number card, “other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States,” is acceptable under List C.

   Form changes: In addition to the foregoing amendments, changes are also made to Section 1 of Form I-9. To date, all versions of Form I-9 have offered employees three options as descriptive of their status in the U.S.A. One such option was “a citizen or national of the United States.” The new form creates two separate categories, one for a person who is “a citizen of the United States,” and a separate one for a “noncitizen national of the United States, as defined in 8 U.S.C. employment-based immigrant visa petition.” This change “will eliminate one difficulty that currently exists when prosecuting those who make false claims to U.S. citizenship.” A definition of noncitizen national is added to the Form I-9 instructions.

   Also added to the instructions is a paragraph clarifying that some aliens authorized to work may leave the expiration date blank if their work authorization does not expire. This includes, for example, asylees, refugees, and certain citizens of the Federated States of Micronesia or the Republic of the Marshall Islands discussed above. In such cases, “reverification does not apply unless they choose to present in Section 2 evidence of employment authorization that contains an expiration date.”

   History: The Supplementary Information to the interim rule points out that the first Form I-9 was issued in 1987. The I-9 was developed pursuant to the Immigration Reform and Control Act of 1986 (“IRCA”), which added Section 274A to the Immigration and Nationality Act. The form was updated in 1991. Following “reports that the large number of acceptable Form I-9 documents led to employer confusion and that a reduction in the number of documents could lead to less employment discrimination, [the legacy Immigration and Naturalization Service (“INS”)] published rules in 1993 and 1995 proposing reductions in the number of acceptable documents.”

   Subsequent legislation, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), reduced statutorily acceptable documents that employers may accept during the employment eligibility verification process. The legacy INS followed IIRIRA with an interim rule in 1997, eliminating by regulation 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. In fact, it was not until November 7, 2007 that 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. We emphasize that this announcement of changes to Form I-9 and the Handbook for Employers was made in an agency press release and not in the Federal Register .

   By that time, because neither the legacy INS nor USCIS had earlier amended Form I-9 to reflect the statutory changes in 1996 and regulatory changes in 1997, the form provided employers with an outdated, incorrect list of acceptable documents for more than 11 years . Even though the government failed to update the form, U.S. employers were still considered to be on notice of the changes to acceptable documents by virtue of the 1997 rule publication in the Federal Register .

   A subsequent notice published in the Federal Register on November 26, 2007 confirmed this notion, stating 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,” when the November 26, 2007 notice went into effect.

   With the latest notice of December 17, 2008, employers are likewise considered to be on notice of I-9 changes, even if they are unaware. Therefore, U.S. employers should be sure to take note of the following:

   - the new rule goes into effect on February 2, 2009, such that the Form I-9 described in the Federal Register notice of December 17, 2008 must be used exclusively as of that date
   - an informational version of the form can be found at pages 8 – 12 of the Federal Register notice, online at http://edocket.access.gpo.gov/2008/pdf/E8-29874.pdf
   - employers should not use the informational version of the new I-9 from the December 17, 2008 Federal Register notice, which bears the legend “for informational purposes only.” Instead, they should monitor the USCIS web site (www.uscis.gov) and download Form I-9 at the link for “Immigration Forms” when it becomes available there
   - effective February 2, 2009, employers must accept only the documents set forth on the newest version of Form I-9 for all new hires and reverification purposes

   We cannot help but note that this is the fourth change to Form I-9 over the past 14 months. The November 7, 2007 version bore a revision date of June 5, 2007 and the notation that it would expire on June 30, 2008. An updated version, with a revision date of June 16, 2008, and bearing an expiration date of June 30, 2009, was available on the USCIS web site for a matter of only days in June 2008, but mysteriously disappeared without explanation. That version was replaced with another Form I-9 bearing a revision date of June 5, 2007, this time indicating it would expire on June 30, 2009. Finally, on December 17, 2008, the DHS issued the most recent version of Form I-9 discussed above.

   Small wonder that U.S. businesses may be confounded by I-9 requirements. It is difficult to maintain even basic awareness of changes to the form and the documents workers may present. With 50 states, in addition to other U.S. territories, there is a multitude of document combinations that can confound even a diligent employer. It can be a significant challenge to ascertain whether documents reasonably appear on their face to be genuine and relate to the person presenting them. Specific document-related problems include that:

   - since 1935, the Social Security Administration has issued 50 different versions of the Social Security card, all of which are still valid. It was not until 1982 that the agency began annotating non-work cards with the legend “not valid for employment. It was not until 1992 that the agency began using the legend “valid for work only with INS authorization;” in 2004 the annotation began to reference DHS
   - older versions of the Alien Registration Receipt Card, Form I-551, do not bear expiration dates and may be presented for I-9 purposes
   - older versions of Social Security cards and Form I-551 are much more susceptible to counterfeiting or other fraudulent use – and duping employers in the I-9 process

   Notwithstanding these and a host of other issues, the interim rule will go into effect February 2, before any period for comment. The DHS “finds advance notice and comment for this rule to be impracticable, unnecessary, and contrary to the public interest.” Written comments to the interim rule are sought, however, and may be submitted until February 2. The rule may be found in the Federal Register online, at http://www.access.gpo.gov/su_docs/fedreg/frcont08.html at the link for December 17, 2008. A link to the rule is on our web site, www.coplandandbrenner.com.