January 28, 2009

New I-9 Must Be Used Beginning February 2, 2009

Under the Immigration Reform and Control Act of 1986, employers are required to verify the identity and employment authorization of each person they hire for employment in the United States within three business days of the employee's first day of work. Specifically a Form I-9 must be executed with Section 1 of the form completed on day 1 and Section 2 within 3 days of hire. Starting February 2, 2009, employers are required to use a new version of Form I-9. The current edition of Form I-9 will not be valid for use on or after February 2, 2009.

The most significant change to Form I-9 is the requirement that all documents presented during the I-9 verification process must be unexpired. Currently, certain documents, including U.S. Passports or Drivers’ licenses can be presented as proof of identity and/or work eligibility. The revised Form I-9 also eliminates Temporary Resident and older versions of Employment Authorization Cards (Forms I-688, I-688A, and I-688B) from the list of documents sufficient to establish both identity and employment authorization (referred to as "List A"), since these cards no longer are issued and any outstanding cards would have now expired.

The revised Form I-9 adds to List A (1) foreign passports containing a temporary I-551 stamp or temporary I-551 printed notation on a machine readable immigrant visa (proof of permanent residency) , and (2) valid passports for citizens of the Federal States of Micronesia and the Republic of Marshall Islands, if presented in conjunction with certain entry authorization documents (Form I-94 or I-94A).

The USCIS stated in a press release that “Although prior regulations refer to temporary I-551 “stamps,” the Department of State for several years has been affixing machine-readable immigrant visas (MRIVs) that contain a pre-printed temporary I-551 notation in the foreign passports of aliens immigrating to the United States. DHS therefore is updating the regulations to reflect this alternate temporary I-551 document with the pre-printed temporary I-551 notation on MRIVs.” With respect to the second addition USCIS states that citizens of the FSM and RMI have the privilege of residing and working in the United States and this amendment will allow them to use their passports in the I-9 process without the need to obtain a separate Employment Authorization Document.

As a reminder for companies within the agriculture industry that locate and place employees, the I-9 requirement may also apply to the workers who are referred and placed with other companies. The instructions note that “the term ‘employer’ mean all employers including those recruiters and referrers for a fee who are agricultural associations, agricultural employer, or farm labor contractors.” For companies that “refer” job seekers for a fee, the I-9 obligations should be understood and applied to avoid penalties and fines.

This new form should not be used prior to February 2, 2009. However after that date it should be used for all new hires and all section 3 updates and reverifications. The new I-9 can be found at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf.