• Key Form I-9 Changes to Go Into Effect on February 2, 2009
  • January 26, 2009 | Author: Leigh N. Ganchan
  • Law Firm: Haynes and Boone, LLP - Houston Office
  • Effective February 2, 2009 there will be several key changes to the Form I-9 and the types of acceptable identity and employment authorization documents that employees may present for completion of the Form. The changes emanate from the Department of Homeland Security’s (DHS) plan to improve the integrity of the employment verification process so that individuals who are unauthorized to work are prevented from obtaining employment in the United States.

    Employers Will No Longer Be Able to Accept Expired Documents
    The published rule explains that expired documents compromise the effectiveness and security of the Form I-9 process. DHS points to counterfeiters who substitute an unauthorized user’s photograph and other identifying information into expired documents, which can then be used to obtain unauthorized employment. DHS further notes that newer, unexpired documents contain up-to-date security features that make them less vulnerable to counterfeiting and fraud.

    A document containing no expiration date, such as the Social Security account number card, will be deemed unexpired. Therefore, employers may continue to accept such documents as long as they otherwise appear to be facially genuine and to relate to the employee.

    Further Changes to Acceptable List A, B and C Documents
    The rule modifies the List A reference to “temporary I-551 stamps on unexpired foreign passports” to include the “pre-printed temporary I-551 notation on Machine Readable Immigrant Visas” (“MRIVs”). The MRIV is an immigrant visa stamp placed in the foreign national’s passport by a US Consulate. The visa includes the statement, “upon endorsement serves as temporary I-551 evidencing permanent resident status for 1 year” and is now specifically listed as acceptable for establishing a non–U.S. citizen’s eligibility to be employed in the United States.

    The rule removes Form I-688, “Temporary Resident Card,” and Forms I-688A and I-688B, “Employment Authorization Cards,” since they are no longer issued and have all reached the assigned expiration dates.

    The rule adds references to Form I-94A, which is identical to the Form I-94 “Arrival-Departure Record” except that all I-94A fields are computer-generated rather than being annotated by hand.

    The rule replaces the current reference to the List C document, “Social Security number card,” with the statutory term “Social Security account number card.”

    Technical Corrections
    The appearance of the Form I-9 will also change when the rule takes effect. Traditionally, Section 1 has featured 3 boxes relating to citizenship and immigration status from which the employee must choose. The new Section 1 will provide a fourth choice by making “citizen of the United States” and “noncitizen national of the United States, as defined in 8 U.S.C. 1408” two separate categories. The stated purpose for separating the two groups is to “eliminate one difficulty that currently exists when prosecuting those who make false claims to U.S. citizenship.”

    The rule defines the term “noncitizen nationals of the United States” to include a very limited group: persons born in American Samoa; certain former citizens of the former Trust Territory of the Pacific Islands who relinquished their U.S. citizenship (relating to political changes in the Commonwealth of the Northern Mariana Islands); and certain children of noncitizen nationals born abroad.

    Section 1 also replaces the text “An alien authorized to work until --/--/-- (Alien or Admission number ----------------'' with the text “An alien authorized to work (A or Admission ------ ------ ) until (expiration date, if applicable--month/day/year) --/--/--.”

    Reverification Clarification
    Clarifying a common source of confusion the rule sets forth guidelines regarding when employers need to reverify the work authorization of certain employees. Specifically, employers are instructed that they may leave the expiration date blank for employees whose work authorization does not expire (e.g., asylees, refugees, certain citizens of the Federated States of Micronesia or the Republic of the Marshall Islands). Such employees do not need to undergo reverification unless they choose to present in Section 2 evidence of employment authorization that contains an expiration date (e.g., Employment Authorization Document (Form I- 766)).

    Do Not Use Until February 2, 2009!
    A copy of the amended Form I-9 reflecting these and other form-related changes is published as an attachment to the rule, which is located online at www.regulations.gov. The amended Form I-9 is published for informational purposes only so do not begin using it in your employment eligibility verification compliance program until the rule goes into effect.