Copland and Brenner

Table of Contents

1. New Form I-9 Required April 3
2. WHTI Travel Document Requirements Effective June 1
3. H-1B Filings: What a Difference an Economic Downturn Makes

1. New Form I-9 Required April 3

   Effective April 3, 2009, a new version of Form I-9 is required for employment verification of all new hires, and may also be used to reverify ongoing employment eligibility in certain circumstances. The new Form I-9 bears the annotation “(Rev. 02/02/09) N” in the lower right hand corner, indicating a revision date of February 2, 2009. A new Handbook for Employers, Form M-274, has also been issued and bears the annotation “Rev. 04/03/2009 N” on the lower right hand corner of the first page, indicating a revision date of April 3, 2009. In both cases, the “N” designation after the form revision date indicates that no earlier version should be utilized by employers.

   The new Form I-9 was initially slated to be in use effective February 2, 2009, pursuant to a Department of Homeland Security (“DHS”) interim rule published in the Federal Register on December 17, 2008. This accounts for the form’s revision date as noted above. However, a February 3, 2009 Federal Register notice delayed the effective date of the interim rule for 60 days, until April 3, and extended the deadline to submit comments for 30 days, until March 4. The delay was intended to allow not only the additional public comment, but afforded “DHS officials the opportunity for further review and consideration of the interim final rule.”

   Whatever comments may have been submitted by March 4, it appears that no additional effort was devoted to amending the Form I-9 itself, despite at least two additional Federal Register notices published after February 3 but prior to April 3. For example, last month we reported on a DHS rule of February 23, which amended employment eligibility verification requirements for certain members of the U.S. armed forces. Under that February 23 rule, a military identification card is established as a List A document (establishing both identity and employment authorization). However, the rule provided that a military ID card is a List A document only “[i]n the case of an individual lawfully enlisted for military service in the Armed Forces under 10 U.S.C. 504” - and it “may be accepted only by the Armed Forces.”

   The April 3, 2009 version of the Handbook for Employers does, on page 41, state that a military ID is an acceptable List A document, “but only if the employer is the U.S. military and the Form I-9 is completed in the context of military enlistment itself. In the case of an individual lawfully enlisted in the U.S. Armed Forces, a valid, unexpired military ID card may be accepted as a List A document by the Armed Forces only. No other employer may accept a military ID card as a List A document.” It is curious that, despite this reference in the Handbook and the two-month delay in mandating use of a new Form I-9, the form itself includes no reference to this regulatory change. This is but one important nugget hidden in the Handbook but does not appear on Form I-9 itself. Others include:

   - on page 6, a note that “[i]f you participate in the E-Verify Program, you may only accept List B documents that bear a photograph”
   - on pages 7 – 8, a discussion of which receipts are acceptable, and for how long; instructing that “[w]hen the employee provides an acceptable receipt, record the document title in Section 2 of the Form I-9 and write the word ‘receipt’ and its document number in the ‘Document #’ space. When the employee presents the actual document, cross out the word ‘receipt’ and any accompanying document number, insert the number from the actual document present¬ed, and initial and date the change.”
   - on pages 8 – 9, a chart setting forth “[s]ome examples of documents that employment-authorized aliens with unique or temporary employment authorization may present to employers;” such documents include an employment authorization document (Form I-766B) “that is expired on its face, but that has been automatically extended by a Federal Register notice. The Federal Register notice will describe, based on unique notations on the cards, which EADs have been automatically extended. (To minimize confusion over this extension at time of hire or reverification, qualified individuals may present a copy of the applicable Federal Register notice regarding the auto-extension of employment authorized status.)” In such cases, the “[v]alidity period is the period stated in the Federal Register notice.”
   - at pages 10 – 11, special instructions for completion of Form I-9 by a parent or guardian in the case of minors (under the age of 18), who “cannot present a List A document or an identity document from List B”
   - on page 31, confirmation that “[e]xpired documents are no longer acceptable for Form I-9. However, you may accept Employment Authorization Documents (I-766) and Permanent Resident Cards (I-551) that appear to be expired on their face, but have been extended under the limited circumstances, described in Part 2, Section 2, Table 2.”
   - also on page 31, “[i]ndividuals under the Temporary Protected Status (TPS) Program whose Employment Authorization Documents appear to be expired but were actually automatically extended via Federal Register notice may continue to work based on their Employment Authorization Documents during the automatic extension period specified in the Federal Register notice announcing the extension.”
   - on page 40, a discussion of certain classes of aliens (including refugees and asylees) who may lack an EAD (Form I-766) and whose work permission does not expire; such employees should write “N/A” at Section 1 next to the “alien” box as to when their employment authorization expires; if an employer refuses to hire a work-authorized alien because of his or her immigration status or because they are unable to provide an expiration date on the I-9, the employer violates anti-discrimination laws

   We note that a Federal Register notice relevant to one of the arcane discussions in the Handbook has already been published. On March 30, USCIS published a notice stating that deferred enforced departure for certain Liberians has been extended – as has their employment authorization. The notice “informs Liberians covered by [deferred enforced departure] and their employers how to determine which EADs are automatically extended” for a six-month period. It also instructs those seeking employment authorization for the full 12-month period to apply for a new employment authorization document.

   The notice provides for an automatic, six-month extension of employment authorization, through September 30, 2009, for those Liberians meeting either of the following criteria:

   - holding an EAD bearing an expiration date of September 30, 2007 and the notation “A-12” or “C-19” under “Category,” or
   - an EAD bearing an expiration date of March 30, 2009 and the notation “A-11” under “Category”

   The notice states that “[e]mployers should not request proof of Liberian citizenship.” They “should accept an EAD as a valid ‘List A’ document and not ask for additional Form I-9 documentation if presented with an EAD that has been extended pursuant to this [ ] notice.” Further, “[e]mployers are reminded that an applicant for employment or an employee can present any legally acceptable document as proof of identity and eligibility for employment,” and that “the laws requiring employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force.” Thus, the burden of maintaining awareness of relevant Federal Register notices is placed squarely on employers as they seek to avoid hiring unauthorized aliens as well as violating anti-discrimination laws.

   The new Handbook for Employers is 65 pages long (cover to cover), compared to 47 for the previous version. The new, and lengthier, Handbook includes certain information that arguably provides helpful detail to employers. It states that “you are not expected to be an immigration law expert,” and that “USCIS does not expect you to be a document expert.” However, the mere fact that it is 65 pages long is indicative of the onus that employment verification places upon employers.

   Immigration enforcement efforts are not known for their niceties. Because of the due diligence foisted upon employers in the employment verification context, they will do well to thoroughly digest the new Handbook and consult with counsel as necessary.

2. WHTI Travel Document Requirements Effective June 1

   Despite last-ditch efforts to postpone them, the full requirements of the land and sea phase of the Western Hemisphere Travel Initiative (“WHTI”) are scheduled to go into effect on June 1, 2009. Under these WHTI provisions, U.S. and Canadian citizens must present a single document denoting both identity and citizenship when entering the U.S.A. by land or sea borders from within the Western Hemisphere.

   There are several types of documents that will satisfy WHTI requirements, including a passport, an enhanced driver license (“EDL”) issued by a U.S. state or Canadian province or territory, and certain “trusted traveler” cards. U.S. citizens may also present a passport card issued by the Department of State (“DOS”). Details regarding U.S. passports and passport cards are available on the DOS web site at http://travel.state.gov/passport/passport_1738.html. Information regarding New York State’s EDL is available on the Department of Motor Vehicles web site at http://www.nydmv.state.ny.us/edl.htm. It should be noted that there are special rules for certain groups, including children and Native Americans. Additional information regarding acceptable travel documents under WHTI is available online at the U.S. Customs and Border Protection page (http://www.cbp.gov/), by clicking on the link to “WHTI.”

   Representative Louise Slaughter (D-NY) is among those seeking to delay (again) the documents mandated by WHTI for land and sea travel. She represents New York’s 28th Congressional District, which consists of parts of Erie, Monroe, Niagara, and Orleans counties, including Niagara Falls and sections of Buffalo and Rochester. As such, she has a vested interest in keeping her constituents happy on cross-border matters.

   In a recent speech at the Brookings Institution/Canadian International Council Northern Border Event, Representative Slaughter stated that “we in Western New York do not think of the bi-national Buffalo-Niagara region as two separate countries, but rather as one community with a river running through it.” She pointed out her earlier support for delaying implementation of the land and sea phase requirements from January 2008 until June 2009 and, despite many months of advance notice, faults the June 1 effective date by stating “[w]e cannot simply flip a switch and move from having the world's largest open-border to requiring expensive new crossing documentation.” She is supporting a bill that would provide for an additional delay, until 2010.

   The problem with Representative Slaughter’s position is that the events of 9/11 literally brought home the reality of a changed world. Those events rightfully, belatedly, changed how the U.S.A. conducts itself with respect to travelers seeking entry to our country. It should be asked how many of her citizen constituents clamor for greater enforcement of U.S. immigration laws, support the fence project along the Mexican border, oppose comprehensive immigration reform that would allow – or even require - illegal immigrants to come out of the shadows, and yet believe they themselves should be immune from basic documentary requirements involving international travel. As Secretary of State Janet Napolitano has stated, “it is a real border, and we need to address it as a real border.”

3. H-1B Filings: What a Difference an Economic Downturn Makes

   The H-1B filing period for fiscal year 2010 began only on the 1st of this month, so it is admittedly premature to draw conclusions as to the total number sought. However, the relative calm with which this April 1 arrived stands in marked contrast to the past two years, when a stronger economy apparently contributed to far greater need. It is not over, of course, and we will provide details on FY2010 H-1B visa demand after the information becomes available.