Background

All employers are required by law to verify the identity and employment authorization of each person they hire for employment in the United States. Form I-9 is the federal form employers are required to complete to satisfy their verification obligation.

Final Rule

Recently, the Department of Homeland Security (“DHS”) published an interim final rule revising the list of acceptable documents for the employment eligibility verification process. In turn, the U.S. Citizenship and Immigration Service (“USCIS”) submitted an interim final rule that revises Form I-9 in accordance with the DHS rule. The purpose of the new form is to improve the security of the process. All employers are required to use the revised Form I-9 for all new hires and to re-verify any employee with expiring employment authorization beginning April 3, 2009*.

The most significant change to Form I-9 is the requirement that all documents presented during the Form I-9 completion process be unexpired. The new rule also:

• Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B. These previously accepted Forms, which include temporary resident card and outdated employment authorization cards, are no longer issued and have expired;
• Adds foreign passports containing certain machine readable immigrant visas to List A;
• Adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federal States of Micronesia and the Republic of the Marshall Islands, along with Form 1-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and those nations; and
• Makes other technical changes.

New Form I-9

Employers are required to begin using the revised Form I-9 on April 3, 2009. A copy of the revised Form will be available on the USCIS website shortly.

If you have any questions regarding the revised I-9 Form or any other verification or immigration related questions, please contact the Labor and Employment attorneys at Bingham McHale.

*Note that initially, the new rule and new form were to take effect 45 days after the new rule was published in the Federal Register on December 17, 2009. USCIS subsequently delayed implementation of the rule by an additional 60 days in order to provide more time for the public to comment and for the USCIS to consider those comments. The initial public comment period expired on March 4, 2009.

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