New employment verification forms bring change to process

By Patrick Simpson
H&MM Columnist

Q. What do I need to know about the new I-9 form?

A. In December 2008, the Department of Homeland Security published an interim final rule streamlining the Employment Eligibility Verification process and revising the Form I-9 currently in use as part of that process. Both the rule and the new form originally were to be effective Feb. 2, 2009. However, due to the hold the Obama administration has placed on all rulemaking undertaken in the final days of the Bush administration, the implementation of the new I-9 rule has been delayed. Per the latest guidance published by DHS, employers must begin using the new Form I-9 (bearing the revision date of Feb. 2, 2009) as of April 3, 2009. Until then, Form I-9 dated June 5, 2007, should be used to verify identity and employment eligibility of new workers.

Along with the new form come several substantive changes to the I-9 process. In an effort to reduce what it perceives as a significant opportunity for fraud, DHS has disallowed the use of all expired documents for I-9 verification purposes. From April 3 onward, only unexpired documentation can be used to complete the I-9 process. The lists of acceptable documents contained within the new Form I-9 bears the notation that “[a]ll documents must be unexpired.”

In addition, the new Form I-9 changes the acceptable documents contained in List A. Certain Employment Authorization Documents (Forms I-688A and I-688B), as well as the Temporary Resident Card (From I-688) have been removed from the list. The following have been added:

• U.S. passport cards;
• A foreign passport containing an I-551 printed notation on a machine-readable visa; and
• A passport from the Federated States of Micronesia or Republic of the Marshall Islands with valid I-94 document demonstrating valid status pursuant to the Compact of Free Association with the United States.

Finally, an important change has been made to Section 1 of the new Form I-9. In an effort to eliminate confusion with persons holding U.S. nationality but not U.S. citizenship (for example, citizens of American Samoa), a new check box has been added pertaining to citizenship or alien status. Where previously there were three check boxes (U.S. citizen, lawful permanent resident, and alien authorized to work), there now appears a fourth check box labeled “noncitizen national of the United States.” This change not only eliminates a prior ambiguity, but also enables the government to better prosecute those making false claims to U.S. citizenship, an enforcement initiative that has formed an important part of the government’s ongoing efforts to crack down on unauthorized employment in the U.S.

hmm@questex.com

Patrick Simpson is an attorney with Nixon Peabody. He may be reached at (585)263-1023 or at psimpson@nixonpeabody.com. This information provided is general and educational and not legal advice. For additional information, please visit www.hospitalitylawyer.com.