Changes to Form I-9: Administrative on Their Face; Substantive in Effect

In 1997, the then Immigration and Naturalization Service (INS) published an interim final rule in the Federal Register, officially eliminating the documents the IIRIRA branded for removal. At that time, however, Form I-9 was not revised or updated to comply with the interim final rule and reflect the revised List of Acceptable Documents.

In 1998, the INS proposed another interim rule, “Interim Designation of Acceptable Documents for Employment Verification,” through which it reduced the number of acceptable documents to 14. However, the INS again failed to revise the I-9 form to reflect the updated list, instead waiting for a more comprehensive final rule. Unfortunately, such a more comprehensive final rule was never issued, so Form I-9 was not updated.

Instead, the I-9 Form remained incorrect for over 10 years, which prevented the immigration authorities from enforcing the interim rule. Finally, on Nov. 26, 2007, U.S. Citizenship and Immigration Services (USCIS) mandated the use of a new I-9 form. With this new form in place, USCIS indicated that immigration authorities will begin enforcing the current list of acceptable verification documents.

Impetus for Change

The reason for the renewed interest in the I-9 Form is apparent. USCIS recognizes that employment is often the main attraction for illegal immigrants. The changes to Form I-9 are intended to deter illegal immigration. The reason for this necessary deterrent is also apparent. For the last several years, homeland security has been a priority for the United States. One step toward ensuring security and safety in the U.S. is to ensure that individuals living and working in this country are doing so legally, and with proper legal documentation. The new I-9 form is intended to improve the employment verification process to provide more assurance that unauthorized individuals are not working in the United States.

More Specific Classification Required

The first of the changes to Form I-9 is a more specific classification of the employee's immigration status. Before, the form combined U.S. citizens and nationals into one classification. Now, the new I-9 Form splits those classifications into two ' one as a “U.S. citizen,” and one for “U.S. national.” These two classifications are added to the already existing classifications of “U.S. permanent resident” and “Alien otherwise authorized to work.”

This change may appear solely administrative on its face, but the effect is substantive. To understand the effect, one must understand the distinction between a U.S. citizen and a national of the United States. According to Section 101(a)(22) of the Immigration and Nationality Act, the term “national of the United States” means: 1) a citizen of the United States; or 2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. To clarify, all U.S. citizens are nationals of the United States, but not all nationals of the United States are U.S. citizens. Individuals who can be nationals of the United States, but not U.S. citizens, include: 1) a person born in American Samoa or Swains Island (the “outlying possessions”) on or after the date of formal acquisition; 2) a person born outside of the U.S. of parents who are both nationals but not citizens, so long as the parents had residency in the U.S. or one of its outlying possessions prior to the person's birth; 3) a person of unknown parentage found in an outlying possession of the United States while under five years old, until shown, prior to attaining the age of 21, not to have been born in such outlying possessions; and 4) a person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, who, prior to the birth of the person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years, a) during which the national parent was not outside the United States or its outlying possessions for a
continuous period of more than one year; and b) at least five years of which were after attaining the age of 14 years.

This change to Form I-9, separating U.S. citizen status from national status, serves to reduce the opportunity for an employee to make a false claim to U.S. citizenship by requiring more specificity in the individual's classification.

Expired Documents Prohibited

Another change to the new I-9 form is that expired documents are finally prohibited. An employee used to be able to use an expired U.S. passport or expired identity card to satisfy I-9 requirements. Now, however, if a document has an expiration date that predates the date of hire, the document can no longer be used as an acceptable form of proof of eligibility to work in the United States. Notwithstanding this change, the expiration of identity documents after hire does not trigger the employer's obligation to re-verify that employee's eligibility to work. The expiration of an employee's documents evidencing temporary employment authorization (EAD Form I-766), however, does force the employer to re-verify the employee's eligibility to work in the United States. If the employee cannot produce unexpired work authorization documents, the employee is no longer eligible to work in the United States.

Acceptable Documents Modified

Through the new form I-9, USCIS has also modified Lists A and C of documents evidencing employment authorization. For instance, while U.S. citizens can no longer use an expired U.S. passport, they can present an unexpired passport card in lieu of an unexpired passport. Permanent residents are now allowed to use a temporary I-551 printed notation on a machine-readable immigrant visa. This is in addition to the “temporary” I-551 stamp that USCIS places on a passport page or an I-94. This new “document” pertains to individuals who have obtained an immigrant visa outside of the United States and have used it to enter the U.S.

Finally, for aliens otherwise authorized to work in the United States, USCIS has added as an acceptable document under List A passports for citizens of the Federated States of Micronesia and the Republic of Marshall Islands, along with Form I-94 or I-94A, provided admission into the U.S. was pursuant to the Compact of Free Association between the United States and the FSM or RMI. The USCIS has also permitted use of the I-94A wherever I-94 is used. Deleted from the lists of acceptable documents for aliens otherwise authorized to work are Forms I-688, I-688A and I-688B. These forms are no longer issued and any such documents previously issued have expired. USCIS now issues Form I-766 to those individuals who formerly received Forms I-688, I-688A or I-688 B. Form I-766 remains an acceptable document.

Additionally, USCIS has removed the following as available documents for proof of both identity and employment eligibility:

• Certificate of U.S. Citizenship (Form N-560 or N-570);
• Certificate of Naturalization (Form N-550 or N-570);
• Alien Registration Receipt Card (Form I-151);
• An unexpired Reentry Permit (Form I-327); and
• An unexpired Refugee Travel Document (Form I-571).

These forms were removed because they are susceptible to counterfeiting, tampering, and fraud.

Interacting with Employees

When faced with the situation in which an employee presents documents that are no longer acceptable pursuant to Form I-9, an employer should simply tell him or her that the documents are no longer acceptable. Employees must be asked to produce documents from the lists attached to Form I-9. Employers may not specify which documents an employee must present. Also, unless the employer participates in the USCIS E-Verify Program, it cannot require an employee to provide a Social Security Number, or ask for any document with the employee's Social Security Number on it. Employers should provide the list of available documents to the new hire so that person knows what documents are acceptable.

If the employee cannot understand the list without assistance or if he needs the Form I-9 translated, someone may assist him. Again, however, the employer may not tell the employee which documents he or she must present to satisfy Form I-9 requirements. Furthermore, the individual assisting the employee with the Form is also required to sign the form indicating his or her involvement.

Finally, the current Form I-9 replaces the current reference to the List C document “Social Security number card” with the statutory term “Social Security account number card.” A Social Security account number card, unless it specifies on its face that the issuance of the card does not authorize employment in the United States, is an acceptable List C document.

The Impact on Employers

Now that we understand what the changes to Form I-9 are, what do these changes mean to employers?

• First, and most obvious, employers should ensure that they are using the revised I-9 form to verify the work authorization of new hires and for any other re-verification required by law.
• Employers should follow the list of acceptable documents closely. Only allow those documents in Lists A, B and C identified by USCIS.
• Employers must be sure to re-verify employment authorization for those employees whose temporary work authorization document have expired. This is particularly important for non-citizen employees who are more likely to have employment authorization documents with an express expiration date.
• Employers should follow the strict timelines imposed by law. They must require the employee to complete Section 1 of the Form I-9 on the first date of employment and must inspect documents and complete the Form I-9 within three days of the first date of employment.
• Employers should have detailed written I-9 compliance procedures. Written compliance procedures can be used as a defense tool to show that the employer took reasonable steps to ensure Form I-9 compliance.
• Employers should train their workforce as to the Form I-9 requirements and restrictions.

Finally, employers should avoid discrimination in the Form I-9 process. They must complete the process uniformly for all new hires and applicable re-hires regardless of national origin, ethnicity or any other protected status. There are particular laws that punish employers for discriminating against employees on the basis of various protected statuses. This includes discrimination in the Form I-9 process based upon ethnicity or national origin. The penalties for discrimination are severe and must be avoided at all costs.

Employers Should Act Now

Employers must not take these changes to the Form I-9 lightly. While they may appear simple and strictly administrative on their face, the effects of the changes are quite significant. The new Form I-9 may appear uncomplicated, but it is easily (and often) completed incorrectly. The penalties for failing to complete the Form I-9 properly or sufficiently is anything but nominal, so employers should take all necessary steps to ensure compliance and avoid the consequences of avoidable mistakes.

As a quick resource for additional questions, employers may have in completing the Form I-9, USCIS has issued a useful handbook on how to complete the Form. Handbooks can be obtained at: www.uscis.gov. Employers without computer access can order USCIS forms by calling 1-800-870-3676. Individuals can also request USCIS forms and information on immigration laws, regulations, and procedures by calling the National Customer Service Center toll-free at 1-800-375-5283.

Tina M. Maiolo, a member of the Washington-based law firm Carr Maloney, has extensive litigation and counseling experience with employers related to immigration law, employment law and business law matters. She can be reached at [email protected].

For over two decades now, employers have been required to verify and record employee work authorization by inspecting documents evidencing identity and employment eligibility pursuant to Form I-9. While employers are not expected to be document experts, they are expected, and required, only to accept documents that reasonably appear to be genuine and relate to the specific employee, so it is critical that they become informed on these changes. As of April 3, 2009, employers were required to use the new Form I-9 for employment eligibility verification for new employees and applicable re-hires. The new form is the latest step in what has been an unsystematic effort by the United States government to create and enforce immigration laws in the workplace.

History of the Form

Form I-9 was created by the Immigration Reform and Control Act in 1986. This Act identified 29 forms of identification employees could choose from to prove they were entitled to work in the United States. Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which mildly reduced the number of documents employers may accept from newly hired or re-hired employees during the employment eligibility verification process to 27.

In 1997, the then Immigration and Naturalization Service (INS) published an interim final rule in the Federal Register, officially eliminating the documents the IIRIRA branded for removal. At that time, however, Form I-9 was not revised or updated to comply with the interim final rule and reflect the revised List of Acceptable Documents.

In 1998, the INS proposed another interim rule, “Interim Designation of Acceptable Documents for Employment Verification,” through which it reduced the number of acceptable documents to 14. However, the INS again failed to revise the I-9 form to reflect the updated list, instead waiting for a more comprehensive final rule. Unfortunately, such a more comprehensive final rule was never issued, so Form I-9 was not updated.

Instead, the I-9 Form remained incorrect for over 10 years, which prevented the immigration authorities from enforcing the interim rule. Finally, on Nov. 26, 2007, U.S. Citizenship and Immigration Services (USCIS) mandated the use of a new I-9 form. With this new form in place, USCIS indicated that immigration authorities will begin enforcing the current list of acceptable verification documents.

Impetus for Change

The reason for the renewed interest in the I-9 Form is apparent. USCIS recognizes that employment is often the main attraction for illegal immigrants. The changes to Form I-9 are intended to deter illegal immigration. The reason for this necessary deterrent is also apparent. For the last several years, homeland security has been a priority for the United States. One step toward ensuring security and safety in the U.S. is to ensure that individuals living and working in this country are doing so legally, and with proper legal documentation. The new I-9 form is intended to improve the employment verification process to provide more assurance that unauthorized individuals are not working in the United States.

More Specific Classification Required

The first of the changes to Form I-9 is a more specific classification of the employee's immigration status. Before, the form combined U.S. citizens and nationals into one classification. Now, the new I-9 Form splits those classifications into two ' one as a “U.S. citizen,” and one for “U.S. national.” These two classifications are added to the already existing classifications of “U.S. permanent resident” and “Alien otherwise authorized to work.”

This change may appear solely administrative on its face, but the effect is substantive. To understand the effect, one must understand the distinction between a U.S. citizen and a national of the United States. According to Section 101(a)(22) of the Immigration and Nationality Act, the term “national of the United States” means: 1) a citizen of the United States; or 2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. To clarify, all U.S. citizens are nationals of the United States, but not all nationals of the United States are U.S. citizens. Individuals who can be nationals of the United States, but not U.S. citizens, include: 1) a person born in American Samoa or Swains Island (the “outlying possessions”) on or after the date of formal acquisition; 2) a person born outside of the U.S. of parents who are both nationals but not citizens, so long as the parents had residency in the U.S. or one of its outlying possessions prior to the person's birth; 3) a person of unknown parentage found in an outlying possession of the United States while under five years old, until shown, prior to attaining the age of 21, not to have been born in such outlying possessions; and 4) a person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, who, prior to the birth of the person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years, a) during which the national parent was not outside the United States or its outlying possessions for a
continuous period of more than one year; and b) at least five years of which were after attaining the age of 14 years.

This change to Form I-9, separating U.S. citizen status from national status, serves to reduce the opportunity for an employee to make a false claim to U.S. citizenship by requiring more specificity in the individual's classification.

Expired Documents Prohibited

Another change to the new I-9 form is that expired documents are finally prohibited. An employee used to be able to use an expired U.S. passport or expired identity card to satisfy I-9 requirements. Now, however, if a document has an expiration date that predates the date of hire, the document can no longer be used as an acceptable form of proof of eligibility to work in the United States. Notwithstanding this change, the expiration of identity documents after hire does not trigger the employer's obligation to re-verify that employee's eligibility to work. The expiration of an employee's documents evidencing temporary employment authorization (EAD Form I-766), however, does force the employer to re-verify the employee's eligibility to work in the United States. If the employee cannot produce unexpired work authorization documents, the employee is no longer eligible to work in the United States.

Acceptable Documents Modified

Through the new form I-9, USCIS has also modified Lists A and C of documents evidencing employment authorization. For instance, while U.S. citizens can no longer use an expired U.S. passport, they can present an unexpired passport card in lieu of an unexpired passport. Permanent residents are now allowed to use a temporary I-551 printed notation on a machine-readable immigrant visa. This is in addition to the “temporary” I-551 stamp that USCIS places on a passport page or an I-94. This new “document” pertains to individuals who have obtained an immigrant visa outside of the United States and have used it to enter the U.S.

Finally, for aliens otherwise authorized to work in the United States, USCIS has added as an acceptable document under List A passports for citizens of the Federated States of Micronesia and the Republic of Marshall Islands, along with Form I-94 or I-94A, provided admission into the U.S. was pursuant to the Compact of Free Association between the United States and the FSM or RMI. The USCIS has also permitted use of the I-94A wherever I-94 is used. Deleted from the lists of acceptable documents for aliens otherwise authorized to work are Forms I-688, I-688A and I-688B. These forms are no longer issued and any such documents previously issued have expired. USCIS now issues Form I-766 to those individuals who formerly received Forms I-688, I-688A or I-688 B. Form I-766 remains an acceptable document.

Additionally, USCIS has removed the following as available documents for proof of both identity and employment eligibility:

• Certificate of U.S. Citizenship (Form N-560 or N-570);
• Certificate of Naturalization (Form N-550 or N-570);
• Alien Registration Receipt Card (Form I-151);
• An unexpired Reentry Permit (Form I-327); and
• An unexpired Refugee Travel Document (Form I-571).

These forms were removed because they are susceptible to counterfeiting, tampering, and fraud.

Interacting with Employees

When faced with the situation in which an employee presents documents that are no longer acceptable pursuant to Form I-9, an employer should simply tell him or her that the documents are no longer acceptable. Employees must be asked to produce documents from the lists attached to Form I-9. Employers may not specify which documents an employee must present. Also, unless the employer participates in the USCIS E-Verify Program, it cannot require an employee to provide a Social Security Number, or ask for any document with the employee's Social Security Number on it. Employers should provide the list of available documents to the new hire so that person knows what documents are acceptable.

If the employee cannot understand the list without assistance or if he needs the Form I-9 translated, someone may assist him. Again, however, the employer may not tell the employee which documents he or she must present to satisfy Form I-9 requirements. Furthermore, the individual assisting the employee with the Form is also required to sign the form indicating his or her involvement.

Finally, the current Form I-9 replaces the current reference to the List C document “Social Security number card” with the statutory term “Social Security account number card.” A Social Security account number card, unless it specifies on its face that the issuance of the card does not authorize employment in the United States, is an acceptable List C document.

The Impact on Employers

Now that we understand what the changes to Form I-9 are, what do these changes mean to employers?

• First, and most obvious, employers should ensure that they are using the revised I-9 form to verify the work authorization of new hires and for any other re-verification required by law.
• Employers should follow the list of acceptable documents closely. Only allow those documents in Lists A, B and C identified by USCIS.
• Employers must be sure to re-verify employment authorization for those employees whose temporary work authorization document have expired. This is particularly important for non-citizen employees who are more likely to have employment authorization documents with an express expiration date.
• Employers should follow the strict timelines imposed by law. They must require the employee to complete Section 1 of the Form I-9 on the first date of employment and must inspect documents and complete the Form I-9 within three days of the first date of employment.
• Employers should have detailed written I-9 compliance procedures. Written compliance procedures can be used as a defense tool to show that the employer took reasonable steps to ensure Form I-9 compliance.
• Employers should train their workforce as to the Form I-9 requirements and restrictions.

Finally, employers should avoid discrimination in the Form I-9 process. They must complete the process uniformly for all new hires and applicable re-hires regardless of national origin, ethnicity or any other protected status. There are particular laws that punish employers for discriminating against employees on the basis of various protected statuses. This includes discrimination in the Form I-9 process based upon ethnicity or national origin. The penalties for discrimination are severe and must be avoided at all costs.

Employers Should Act Now

Employers must not take these changes to the Form I-9 lightly. While they may appear simple and strictly administrative on their face, the effects of the changes are quite significant. The new Form I-9 may appear uncomplicated, but it is easily (and often) completed incorrectly. The penalties for failing to complete the Form I-9 properly or sufficiently is anything but nominal, so employers should take all necessary steps to ensure compliance and avoid the consequences of avoidable mistakes.

As a quick resource for additional questions, employers may have in completing the Form I-9, USCIS has issued a useful handbook on how to complete the Form. Handbooks can be obtained at: www.uscis.gov. Employers without computer access can order USCIS forms by calling 1-800-870-3676. Individuals can also request USCIS forms and information on immigration laws, regulations, and procedures by calling the National Customer Service Center toll-free at 1-800-375-5283.

Tina M. Maiolo, a member of the Washington-based law firm Carr Maloney, has extensive litigation and counseling experience with employers related to immigration law, employment law and business law matters. She can be reached at [email protected].