Revised Form I-9 Delayed Until April 3, 2009

Current law requires all employers in the United States to complete an Employment Eligibility Verification Form (Form I-9) for each newly hired employee to verify each employee's identity and employment eligibility.  On December 17, 2008, the Department of Homeland Security, United States Citizenship and Immigration Services ("USCIS"), posted an "interim final rule" in the Federal Register that revised the Form I-9.

Employers were initially instructed to use the new Form I-9 on and after February 2, 2009; however, the USCIS recently announced that it has delayed by 60 days, until April 3, 2009, the effective date for using the revised Form I-9.

Some of the most important changes to the Form I-9 include the following:

• Most significantly, the interim rule specifies that expired documents are no longer considered acceptable for proof of identification or work authorization. This marks a complete reversal of existing I-9 procedures.
• The interim rule also eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card, and older versions of the Employment Authorization Card / Document) as acceptable documents from List A.  These documents are no longer issued and any that were previously issued have expired.
• The interim rule adds new documents to List A including passports and certain other documents for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands, and revises references to the temporary I-551 stamps on foreign passports by including preprinted temporary permanent residence notations printed on special machine-readable immigrant visas.
• The interim rule revises the employee attestation section of the form. Specifically, the current Form I-9 requires the worker to choose one of three categories asserting his or her immigration status.  The first category is, "A Citizen or National of the United States."  The new Form I-9 will separate this into two categories, resulting in four options.  Thus, in the revised Form I-9, the worker must indicate that he or she is a (i) U.S. citizen; (ii) U.S. National; (iii) U.S. permanent resident; and (iv) or alien otherwise authorized to work.

USCIS contends that the delay will provide the DHS with an opportunity for further consideration of the rule and also allows the public additional time to submit comments.  USCIS has reopened the public comment period for 30 days, until March 4, 2009.  The interim final rule and an informational copy of the revised Form I-9 will continue to be available for public comment at www.regulations.gov.

The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. For further information about the contents, please contact the author at (540) 983-9396. (Copyright 2008, Gentry Locke Rakes & Moore, LLP, and Diane J. Geller, Esq.)