Employers Must Have New Employment Eligibility Verification Form I-9 In Use by December 26, 2007

U.S. immigration authorities have released a revised Form I-9, the form used by employers to verify the identity and employment eligibility of new hires. A copy of the new Form I-9 Employment Eligibility Verification form 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 of the November 7 USCIS news release, the updated I-9 Handbook for Employers and the new I-9 Form are available at the end of this article. On November 26, 2007, the government issued a formal notice on the new I-9 form in the Federal Register, which obligates all U.S. employers to have the new I-9 in place for all employees hired on or after Wednesday, December 26, 2007.

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 that 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 law that went into effect in 1997. The 1997 law reduced the number of List A documents which are acceptable. Five documents were taken off of the list, and one was added. The new Handbook for Employers provides a good summary of which documents can and cannot be accepted and of other minor changes to the form itself.

2. Should employers start using the new I-9 right away? They can, but they will not be legally obligated to shift to the new I-9 until Wednesday, December 26, 2007.

3. Has there been conflicting guidance from the government on when the new I-9 goes into effect? Yes. But the November 26 Federal Register notice issued by the government has clarified that the new I-9 form goes into full legal effect on December 26, 2007. Copies of the Federal Register notice and a related government Update are attached. Thus, employers should start to make the transition to the new I-9 now, but use of the previous version up to December 25 will NOT expose an employer to any liability.

4. Are there reasons to start using the new I-9 now rather than waiting for the required change-over date? Yes. The List of Acceptable Documents on the new version of the I-9 is shorter, cleaner and accurate as to current law. It will simply be a bit easier for people to use. There is no harm in getting a head start on using the new form. Once the new I-9 formally goes into effect, (a) employers will be legally barred from using prior versions of the I-9 form, and (b) employers will face liability if they accept one of the five documents which have been removed from List A, the List of Acceptable Documents for purposes of documenting an employee's identity and employment eligibility.

5. 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.

6. There are non-government services that have already started to send notices saying I can purchase I-9 forms from them. Should my company do that? No. The I-9 form and the new Handbook for Employers are available free of charge and can be printed directly from the government Web site. The instructions from USCIS confirm that an employer can make its own copies of the I-9 form.

7. 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 a decade 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.

8. Does the updated Handbook for Employers include new information? Yes. Although by no means Pulitzer material, the updated Handbook for Employers (publication M-274) includes some badly needed, long-overdue revisions and clarifications that will be welcomed by employers. Some of the new features in the Handbook include:

• E-Verify: The Handbook explains exceptions to standard I-9 procedures for companies that use the USCIS E-Verify Program (formerly known as "Basic Pilot"), in addition to information on how a company may voluntarily enroll in E-Verify.
• Electronic Retention of I-9's: The Handbook has been updated to provide details on federal requirements for completing and storing I-9's electronically, including a list of the security features that must be implemented.
• Sample I-9's: The Handbook includes some new sample I-9's that are filled out to illustrate some of the 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), which is the agency charged with enforcing the anti-discrimination provisions of the immigration laws that went into effect to guard against citizenship status and national origin discrimination 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 on potential penalties for immigration law violations in the new Handbook.
• More Answers to Common Questions: USCIS expanded the Q&A section of the Handbook. 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 on 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 to be much more helpful in understanding how to meet I-9 documentation requirements for certain employees who indicate they are "aliens authorized to work" under different immigration classifications. These include helpful references to foreign nationals who are authorized to work, including those 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 and 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 which 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 the USCIS E-Verify Program, which requires an SSN. An employee must, of course, provide his or her 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 United States 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 in the W-4/payroll process.

9. What went missing in the Handbook? 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, the Handbook's 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-9's would certainly be warranted to help show exactly how to document some of the common and more complex I-9 scenarios. This would have been especially helpful in expanding the discussion on how to properly complete I-9's 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 kinds of immigration authorizations. 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. Other I-94 card annotations 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 (which are 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 Handbookwill keep employers guessing when it comes to addressing the mix of 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 missed entirely.
• The Handbook fails to 'connect the dots' between the 1980's-era I-9 process and legal developments of the last 20 years. An example of this is the absence of any reference to H-1B or I-485 "portability", which are new hire scenarios that have not been adequately addressed for employers in the Handbook.

Despite some of its improvements, the Handbook is still a testament to the federal government dodging the reality of today's workplace. This is most noticeable by 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 now secure employment by using assumed identities, using a real name that corresponds to a real (albeit someone else's) SSN. These workers typically present state-issued ID's and Social Security cards in the I-9 process. On the one hand, the U.S. immigration authorities know that this is the source of the problem, and they expect employers to be attentive to and proactive in fighting that problem. But as the Handbook shows, the 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 for purposes of employees' identity and employment eligibility. The Handbook fails to deliver in this regard, most notably with respect to the very documents (state ID's and Social Security cards) that are now most commonly used in illegal employment.