• United States: USCIS Finalizes I-9 Document Rule without Change 
  • April 29, 2011
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • A U.S. Citizenship and Immigration Services (USCIS) regulation published today finalizes the list of identity and immigration status documents that employers may accept in the Form I-9 employment eligibility verification process. The final rule makes no changes to the current list of acceptable documents, which has been in effect since April 2009, and does not change employers’ obligations in the I-9 process. However, the rule comes as Immigration and Customs Enforcement (ICE) is increasing its I-9 audit efforts and therefore serves as an important reminder of worksite compliance responsibilities.

    Acceptable Identity and Work Authorization Documents 

    In April 2009, an interim final rule made significant changes to the list of documents that employers can accept during the Form I-9 process. These changes have been finalized in today’s regulation. 

    The most significant change was the requirement that employers may accept identity documents only if they are unexpired or do not have an expiration date. The interim rule also added several documents to “List A” -- the list of Form I-9 documents that are acceptable to establish both a worker’s identity and his or her employment eligibility. The following documents were added to List A: 

    • Foreign passports containing the I-551 permanent residence notation printed on a machine-readable immigrant visa. Before April 2009, List A included only the I-551 passport stamp and I-551 permanent resident card. 
    • The U.S. Passport Card. 
    • Passports and certain other documents for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands. 

    Eliminated from List A were several now-obsolete forms of the employment authorization document, Form I-688, Form I-688A, and Form I-688B. 

    Clarifications on Using Form I-9 

    The interim final rule also served as the legal basis for the current version of the Form I-9. Though the “new” form has been in effect since April 3, 2009, some misunderstandings still persist among employers and are worthy of some clarification. 

    Which edition of Form I-9 is acceptable? Employers may use either the February 2, 2009 or the August 7, 2009 edition of Form I-9. Employers may not use earlier versions, because those versions do not contain the most current list of acceptable I-9 documents. 

    What is the difference between a U.S. citizen and a U.S. national? In Section I of the form, a worker must indicate whether he or she is a U.S. citizen, a non-citizen national of the United States, a U.S. lawful permanent resident or a foreign national authorized to work in the United States. Previously, the form contained a single, combined selection that was chosen by workers who were either U.S. citizens or non-citizen nationals. 

    Non-citizen nationals of the United States are individuals who were born in American Samoa, certain residents of the Northern Mariana Islands who have not become U.S. citizens, and certain individuals who were born abroad to non-citizen U.S. nationals. Though U.S. nationals do not possess full U.S. citizenship, they are not foreign nationals; they may enter and work in the United States without restriction. 

    What the Final Rule Means for Employers 

    Though the final rule published today does not change employer obligations in the employment eligibility verification process, it comes as ICE is increasing its audits efforts and is aggressively pursuing penalties against employers who make paperwork efforts. Employers should have an internal checklist for human resources staff to ensure strict compliance with I-9 requirements. Employers who are unsure about how to complete Form I-9 should contact their immigration counsel as soon as possible, so that questions can be addressed within the required I-9 completion timeframe.