eTrends - New Form I-9 Effective Friday April 3, 2009

Beginning Friday, April 3, 2009, employers will be required to use the revised Form I-9, Employment Eligibility Verification ("Form I-9") to verify the identity and employment authorization of each person hired for employment in the United States. The new Form I-9 must be used for all new hires, and for any employees whose employment authorization must be reverified on or after the effective date. The new Form I-9 and the governing interim rule were issued by U.S. Citizenship and Immigration Services ("USCIS") in December 2008, and the new Form I-9 was set to become effective on February 2, 2009. However, USCIS subsequently postponed the effective date.

The most significant difference in the new rule and Form I-9 is that all documents presented during the verification process must be unexpired. Expired documents will no longer be acceptable for employment eligibility verification purposes. The Department of Homeland Security ("DHS") made this change because expired documents may not portray a valid status, and also are prone to tampering and fraudulent use. Moreover, Section 1 of the new Form I-9 now includes separate status options for U.S. citizens and noncitizen nationals. U.S. nationals include persons born in American Samoa, certain former citizens of the Trust Territories of the Pacific Islands, and certain children of noncitizen nationals born abroad.

The new Form I-9 also reflects several changes made to the List of Acceptable Documents for verification purposes. Significantly:

  • Three older types of employment authorization documents were removed from List A (Documents that Establish Both Identity and Employment Authorization):
    • Form I-688, Temporary Resident Card;
    • Form I-688A, Employment Authorization Card; and,
    • Form I-688B, Employment Authorization Card.

Those documents either are no longer issued by DHS or have expired.  Form I-766 continues to be issued by DHS, and will be the only acceptable Employment Authorization Document under List A.

  • The U.S. Passport Card (which the State Department began issuing in July 2008) is now included in List A.
  • Two other types of documents also have been added to List A:
    • A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp.
    • Passports 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 non-immigrant admission under the Compact of Free Association Between the United States and FSM or RMI.
  • Except for minor technical and formatting changes, Lists B and C remain the same.

Action Items for Employers

In light of the April 3 effective date, human resource professionals should:

  • Obtain and review the new Form I-9 and the revised M-274, Handbook for Employers, which recently was issued by USCIS. Both items may be downloaded at www.uscis.gov/i-9 or obtained by calling USCIS at 1-800-870-3676. The Handbook provides detailed guidance for the proper completion of Form I-9, and answers to frequently asked questions about the employment eligibility verification process.
  • On and after Friday, April 3, use only the new Form I-9 (revised 2/2/09) for new hires and reverifications, and accept only documents appearing on the List of Acceptable Documents on the new Form I-9. Employers need not complete new Form I-9’s for existing employees unless reverification is required.
  • Stop using Form I-9 (revised 6/5/07). That version will no longer be valid for use on or after Friday, April 3. Employers who continue to use that version on or after April 3 may be subject to civil money penalties.

For more information, please contact Kimberly J. Korando

Employment, Labor and Human Resources

Employee Benefits and Compensation

Environmental Health and Safety

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Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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