Implementation of New Form I-9
Now Effective April 3

U.S. Citizenship and Immigration Services (USCIS) issued an interim rule in the Federal Register on December 17, 2008, revising the Form I-9, Employment Eligibility Verification. The interim rule initially provided an effective date of February 2, 2009.

On January 20, the White House issued a memo to federal agency heads regarding the implementation of new and pending regulations. The memo directed agency heads to consider extending for 60 days the effective dates of regulations already published in the Federal Register but not yet in effect. On January 28, 2009, the American Immigration Lawyers Association wrote to the acting deputy director of USCIS advocating for a 60-day delay of the implementation of the interim I-9 rule.

Pursuant to a notice published in the Federal Register late on Friday, January 30, USCIS has extended the effective date of the interim I-9 rule until April 3, 2009, so that USCIS and the Obama administration have time to address whether additional changes need to be made to the new Form I-9 and process. Accordingly, all employers are required to use the revised Form I-9 for new employees hired on or after April 3, 2009. Per USCIS, the current version of the Form I-9, dated June 5, 2007, must be used until that date. USCIS is accepting public comments on the interim rule at www.regulations.gov until March 4.

What Is the Form I-9?

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. As a part of the verification process, employers must complete the Form I-9, retain the form for a statutorily established period of time and make it available for inspection by certain government officials.

The list of approved documents that employees can present to verify their identity and work authorization is divided into three sections:

• List A documents verify identity and employment authorization
• List B documents verify identity only
• List C documents verify employment authorization only

The employee must present either one document from List A or one document from List B and one document from List C. The employer may not require employees to present specific documents.

Changes to Form I-9 Requirements

The interim rule makes changes to the lists of approved documents to improve the security of the employment authorization verification process. These changes include the following:

Documents no longer considered acceptable:

• Expired documents. Previously, expired U.S. passports and drivers' licenses were considered acceptable List A and List B documents, respectively. Under the new rule, all documents presented must be unexpired and currently valid. A document containing no expiration date, such as a Social Security card, will be considered unexpired.
• Forms I-688, I-688A and I-688B. The Temporary Resident Card and older versions of the Employment Authorization Card are no longer being issued, and those in circulation have expired. These cards are, therefore, no longer acceptable List A documents. The current version of the Employment Authorization Card is the Form I-766.

New acceptable documents added:

• Documentation for citizens of Federated States of Micronesia and Republic of the Marshall Islands. List A has been amended to include a passport from the Federated States of Micronesia or Republic of the Marshall Islands with Form I-94 or Form I-94A indicating nonimmigrant admission under the compacts of free association between the United States and these nations.
• Machine-readable immigrant visa with temporary I-551 printed notation. In addition to a foreign passport containing a temporary I-551 stamp, List A will now include a foreign passport that contains a temporary I-551 printed notation on a machine-readable immigrant visa.

Changes to the Form

Changes to the Form I-9 document include the following revisions to the employee attestation box in Section 1:

• "Citizen of the United States" and "noncitizen national of the United States" are now separate categories. "Noncitizen national" is defined in the Form I-9 instructions as "persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad."
• The category for non-permanent resident aliens now clarifies that some aliens have indefinite work authorization and are not required to provide an expiration date.

More information about the new Form I-9 and requirements, along with the current and new forms and the updated USCIS Handbook for Employers, Instructions for Completing the Form I-9, are available on the USCIS Web site.