Questions and Answers: The New Employment Eligibility Verification Form I-9 and the New Handbook for Employers

 

Last fall, the federal government issued a formal notice in the Federal Register obligating all U.S. employers to use a newly revised version of Form I-9, Employment Eligibility Verification, for all employees hired on or after Wednesday, December 26, 2007. Form I-9 is used by employers to verify the identity and employment eligibility of new hires. A copy of the new I-9 and the revised 47-page Handbook for Employers, Instructions for Completing the Form I-9 (publication M-274) are available free of charge from the United States Citizenship and Immigration Services (USCIS) Web site. PDF copies are also available at the end of this article.

Faegre & Benson's Immigration Team has prepared the following questions and answers to explain the significance of the new Form I-9 and Handbook for Employers.

1. What's new on the I-9?
Not much. Employers will find that the new I-9 looks almost exactly like the Form I-9 they have been using for years. What has changed the most is List A—the List of Acceptable Documents that employees can present to establish both identity and employment eligibility. The primary reason for the release of the new I-9 was to bring that list into compliance with a law that went into effect in 1997 and reduced the acceptable number of List A documents. Five documents were taken off of the list, while one was added. The new Handbook for Employers provides a good summary of which documents can and cannot be accepted as well as other minor changes to the form itself.

2. Must employers use the new I-9?
Yes. Employers are legally obligated to use the new I-9 for all employees hired on or after Wednesday, December 26, 2007.

3. Are there advantages to the new I-9?
Yes. The List of Acceptable Documents on the new version of the I-9 is shorter, cleaner and accurate as to current law. It is simply a bit easier for people to use. Once the new I-9 formally went into effect, employers (a) were legally barred from using prior versions of the I-9 form and (b) face liability if they accept one of the five documents that were removed from the List of Acceptable Documents for purposes of documenting an employee's identity and employment eligibility.

4. How do I know if I'm using the correct, new Form I-9?
The new Form I-9 bears a revision date of 06/05/07 in the lower right hand corner of each page.

5. There are non-government services that have sent notices saying I could purchase I-9 forms from them. Should my company do that?
No. The I-9 form and the new are both available free of charge and can be printed directly from the government Web site. The instructions from USCIS confirm that employers can make their own copies of the I-9 form.

6. Why didn't USCIS take this opportunity to make more comprehensive changes to the I-9 form and process?
This new I-9 is essentially a product of general housekeeping. USCIS admits that its objective in this release was quite modest—bringing the form into compliance with changes in the law from 11 years ago. USCIS acknowledges that it has plans to make more profound changes in the overall I-9 process. But doing more to tinker with the system would have required even more delays, as formal rulemaking and broader changes to federal regulations would have been required. Rather than delay these basic changes any further, USCIS decided to make the modest changes now. USCIS has advised that we should expect to see more changes to the I-9 in the future.

7. Does the updated Handbook for Employers include new information?
Yes. Although it is by no means Pulitzer material, the updated includes some badly needed, long-overdue revisions and clarifications that many employers have welcomed. Some of the Handbook's new features include:

• E-Verify. The Handbook explains exceptions to standard I-9 procedures for companies that use the USCIS E-Verify system (formerly known as the Basic Pilot/Employment Eligibility Verification Program), in addition to information about how a company can voluntarily enroll in E-Verify.
• Electronic Retention of I-9s. The Handbook has been updated to provide details on federal requirements for completing and storing I-9s electronically, including a list of the security features that must be implemented.
• Sample I-9s. The Handbook includes new sample I-9s that are filled out to illustrate some I-9 rules. Examples include completion of the translation certification and completing an I-9 for an employee under age 18.
• Office of Special Counsel (OSC). There are more references to the U.S. Department of Justice, Office of Special Counsel (OSC), the agency charged with enforcing the anti-discrimination provisions of the immigration laws that guard against discrimination based on citizenship status and national origin in the I-9 process. The Handbook now provides a better summary of how the EEOC and OSC share jurisdiction for certain national origin discrimination claims and provides more details on procedures for filing charges of employment discrimination with these agencies.
• Penalties. Employers will find more details and updates about potential penalties for immigration law violations in the new Handbook.
• More Answers to Common Questions. In updating the Handbook, USCIS expanded the Q&A section. Most of the information in this section is designed to explain how to implement the I-9 process correctly under the law (e.g., explaining that an employer can complete an I-9 before a new employee actually starts work). However, some of the new material is clearly the result of the government recognizing that the I-9 rules can be hard to understand (e.g., the Handbook provides more details about when an employee can present a receipt for documents in lieu of actual documents to prove employment eligibility).
• Unique Immigration Classifications Addressed. Employers will find the Handbook much more helpful for understanding how to meet I-9 documentation requirements for certain employees who indicate they are "aliens authorized to work" under different immigration classifications. There are, for example, helpful references to foreign nationals who have been granted (1) Temporary Protected Status (TPS); (2) Curricular Practical Training (CPT) or Optional Practical Training (OPT) pursuant to F-1 Foreign Student visa status; (3) "TN" status under the North American Free Trade Agreement (NAFTA); (4) refugee or asylee status; and (5) J-1 Exchange Visitor visa status.
• Sample Identity and Employment Eligibility Documents. Employers will especially welcome the expanded and updated display and description of documents that are acceptable for identity and employment eligibility verification.
• Social Security Numbers. The Handbook contains numerous reminders that providing a Social Security Number (SSN) in Section 1 of the I-9 is voluntary for all employees unless the employer participates in E-Verify, which requires an SSN. An employee must, of course, provide his SSN and original Social Security card if that document is being used in Section 2 to confirm employment eligibility. But if the employee is presenting another acceptable document to prove employment eligibility (such as a U.S. passport under List A or a U.S. civil birth certificate under List C), the employer cannot obligate the employee to provide an SSN in Section 1 as part of the I-9 process. Note: An employer will typically confirm the SSN or Taxpayer ID number during the W-4/payroll process.

 

8. What went missing in the Handbook for Employers?

Despite getting a thorough revision, the Handbook will still frustrate employers, especially those new to the I-9 process. Employers looking for a resource to help in distinguishing between genuine and fake documents will be greatly disappointed with the new Handbook. In fact, its samples of the "latest version" of the Permanent Resident Card (Form I-551) and Employment Authorization Card (From I-766) do not show the correct, current type of photo that should appear on those documents. Likewise, it would have been more accurate and helpful to employers if the Handbook included correctly annotated I-94 cards with the special documents (Forms I-20 and DS-2019) that are issued to F-1 Foreign Students and J-1 Exchange Visitors. A few more sample I-9s would certainly be warranted to help show exactly how to document some of the common and more complex I-9 scenarios. It would have been especially helpful to expand the discussion of how to properly complete I-9s for refugees and asylees.

 

USCIS also failed to recognize that the I-94 card is the least understood document that employers must contend with in the I-9 process, in large part because I-94 cards are annotated in so many different ways to confirm many different types of immigration authorization. USCIS would have been wise to include a summary of immigration classifications with corresponding samples of work authorization documents, especially as they relate to the multitude of I-94 annotations. The Handbook does not adequately educate employers on the fact that many I-94 card annotations do not provide any evidence of employment authorization. Some I-94 annotations authorize employment, but are specific to only one employer. Others provide proof of employment eligibility with virtually any employer.

U.S. immigration authorities also missed an opportunity with this new Handbook to address a number of areas of confusion. For example:

• There is no sample document provided for Conditional Permanent Residents.
• The sample foreign passport in the Handbook is insufficient, as it fails to illustrate any information on the issuing authority, validity date or different formats used by foreign countries in extending passport validity (the key data points that need to be documented on the I-9).
• More details could have been provided to clarify characteristics of valid documents to prevent legal immigrants from being denied employment. For example, the sample of the Employment Authorization Card (Form I-766) shows the cardholder's fingerprint. However, many employers would not be aware that the majority of valid I-766 cards are now issued without fingerprints.
• The new Handbook will keep employers guessing about the often-contradictory rules that apply to extensions or changes in an employee's temporary work visa status. A few of those scenarios are addressed, but most are not.
• The Handbook fails to "connect the dots" between the 1980s-era I-9 process and legal developments of the last 20 years. One example is the absence of any reference to H-1B or I-485 "portability," two new-hire scenarios that are not adequately addressed for employers in the Handbook.

 

Conclusion
Despite some improvements, the Handbook for Employers is still a testament to the federal government dodging the reality of today's workplace. This failure is most noticeable in the Handbook's scant treatment of state-issued identification documents and U.S. Social Security cards. Today, illegal employment is being driven by identity theft. The vast majority of illegal aliens working in this country now secure employment by using assumed identities—a real name that corresponds to a real (albeit someone else's) SSN. These workers typically present state-issued IDs and Social Security cards in the I-9 process. On the one hand, U.S. immigration authorities know this is the source of the problem, and expect employers to be attentive to and proactive in fighting it. But as the Handbook shows, those authorities stop far short of giving employers the tools they need to address the problem.

If U.S. immigration authorities expect employers to view the I-9 process as one that demands a high standard of care and integrity, then employers should receive far more guidance and resources to confirm the authenticity of the documents being presented to show identity and employment eligibility. The Handbook fails to deliver in this regard, most notably with respect to the very documents (state IDs and Social Security cards) that are now most commonly used to obtain illegal employment.

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