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January 1, 2009

The New I-9: Coming to a Theater Near You

U.S. Citizenship & Immigration Services (CIS) announced it is updating Form I-9 and certain related procedures. The I-9 is the document that all employers in the U.S. must use to verify employment authorization. The Government recently announced that it is delaying implentation of the new I-9 form until at least April 3, 2009. This AALRR Alert will provide you with an overview of the key changes to the form and procedures.

Why Is U.S. CIS Issuing a New Form I-9?

CIS wanted to upgrade the level of security of the employment verification process by eliminating expired identity documents as acceptable I-9 documents from new hires. Expired identity documents are considered more prone to tampering and fraudulent use. CIS made other technical amendments to the form as well.

When will the New I-9 Form Be Required?

Employers will be required to use the new form effective February 2, 2009. Until then, they may continue to use the old form. Starting February 2, 2009, the new form will be available on the CIS website at Click on “Immigration Forms” and scroll down to “I-9.”

How Does the New Form Affect New Hires?

New hires can no longer tender an expired document for I-9 purposes. Previously, U.S. citizens could tender expired U.S. passports, drivers’ licenses, and certain other expired documents for I-9 purposes.

How Does the New Form Affect Current Employees?

Current employees who are U.S. citizens or lawful permanent residents (green card holders) who are on the payroll prior to February 2, 2009 do not need to be re-verified merely because they previously tendered expired documents with their I-9 form. However, non-immigrants (those who are not U.S. citizens or green card holders) who are already on the payroll will only continue to be work authorized until their employment authorization documents expire. At that time, each non-immigrant must be re-verified using the new I-9 form.

What is the New U.S. Passport Card?

The U.S. Department of State has begun to issue a small plastic “Passport Card” for U.S. citizens for travel by land or sea in North America only. The Passport Card will be a “List A” document for I-9 purposes. List A is a document that establishes both identity and employment eligibility.

Other Technical Amendments

There were several other technical amendments to the I-9. They will be incorporated into the new form and new CIS I-9 manual, both of which will be available soon. For example, one of the amendments points out that citizens of Micronesia and the Mariana Islands are authorized to work pursuant to a U.S. treaty, and their passports are now considered “List A” documents. Also, remember that U.S. citizenship or nationality belongs not only to persons born in the United States but also to all individuals born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island.

Can a Receipt for a Replacement Document Be Accepted?

Under certain circumstances, employers are allowed to accept a receipt for select documents where the employee lost the original document or it was stolen (i.e., U.S. passport, state driver’s license, etc.). The Department of Homeland Security (DHS) will allow the employer to accept a receipt for I-9 purposes, but only for up to 90 days. The employer is responsible for calendaring this 90-day period and inspecting the actual replacement document in a timely fashion.

However, not all receipts are acceptable. For example, non-immigrants using a work permit must produce a new work permit. Merely producing a receipt for a renewal application of a work permit will not confer work authorization.On the other hand, select non-immigrants can continue working for up to 240 days with a receipt for extension of their non-immigrant status in the U.S (including H-1B Professionals, L-1 Managers/Workers, E Investors, and TN status Pursuant to NAFTA). The rules can be confusing and employers should confer with legal counsel when any doubt arises during the I-9 process for any employee.

Are All Social Security Cards Valid for I-9 Purposes?

No. There has been much confusion in the past about when a Social Security card is valid for I-9 purposes. If a Social Security card has any restrictive language on it, it is not valid for I-9 purposes and cannot be accepted as a “List C” document. List C is a document that establishes only employment eligibility. For example, non-immigrants are work authorized and can obtain a Social Security card that says “Valid for Work Only with DHS Authorization.” While the employee may select which I-9 documents they tender, such a restricted Social Security card is never valid for I-9 purposes.

Limitations of the New I-9 Form

The new I-9 form will not solve all work authorization issues. For example, new hires using false documents or a stolen identity are not easily detected. However, the new form is the latest in the government’s continuing effort to minimize the employment of unauthorized individuals.

Can I or Should I Audit the Whole Company?

An employer may audit the I-9’s of their entire workforce to ensure that they are in compliance. If an employer discovers any deficiencies, it may take corrective action. However, an employer may not single out only certain individuals for audit. Such arbitrary conduct could give rise to discrimination claims. If an employer has any doubt about whether its I-9 process could withstand an audit by Immigration & Customs Enforcement (ICE), an internal self-audit is one of the best ways to identify potential problems.

How Do You Know if the Documents Are Valid?

An employer must examine the documents tendered by the new hire to determine if (a) they reasonably appear to be genuine on their face and (b) they relate to the person presenting them. If the documents fail either of these two elements, an employer must not accept the documents.

Are You I-9 Compliant?

Most employers know that DHS regulations require that they complete an I-9 no later than the third day of employing an individual. This includes both sections one and two of the form. Both the employee and employer must sign the form.These records should be kept separate from the personnel files. Further, an employer must retain I-9 forms for three (3) years after the date of hire or one (1) year after the date of termination, whichever is later.
Too often, employers rush through the process or fail to maintain a comprehensive I-9 system. Given ICE’s renewed focus on I-9’s, compliance is very important in order to avoid civil and criminal penalties for both individuals and the company.

What Are An Employer’s Rights if ICE Visits the Company?

ICE must provide employers with three (3) days notice before conducting an I-9 audit. However, if ICE obtains a criminal or civil subpoena from a federal administrative law judge, then ICE may enter the premises without a three-day notice and seize documents, computers, etc. that are listed on the subpoena. ICE usually does not seek a subpoena unless egregious violations are alleged.

Should I Use E-Verify to Assist with Employment Eligibility Verification?

E-Verify is the DHS on-line verification system of I-9 data which assists an employer in determining if a new hire is work authorized in the U.S. Management and the employee must still fill out a Form I-9, but the E-Verify system queries various government databases to help reduce (but not eliminate) the hiring of individuals lacking work authorization. E-Verify is slated to be mandatory for certain federal contractors and subcontractors on January 15 (subject to change due to recent pending litigation). It is already mandatory for employers seeking to extend work permits of select foreign students who graduated form U.S. colleges.

K-12 schools and colleges are not required to use E-Verify merely because they receive federal grant or student loan money. The school must be performing services for the federal government in order to trigger the requirement.

In addition, the school would need to sign a new contract with the federal government that contained the E-Verify requirement, or with a federal government contractor that is already subject to the requirement.

Practical Guidelines

Complying with I-9 regulations can at times be quite challenging. Do not rely on the assertions of employees for interpretation of various immigration documents or determining eligibility. Seek advice from legal counsel when confronted with unusual situations during the I-9 process. AALRR has both immigration and employment attorneys to assist you in this regard. If you have any immigration-related questions, contact Greg Berk at To sign up for e-mail legal updates and seminar announcements from AALRR, go to



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