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Published: January 1, 2008
written by Jeffrey N. Jensen
On November 7, 2007 the United States Citizenship and Immigration Services ("USCIS") released a revised Employment Eligibility Verification Form commonly referred to as the Form I-9. Wisconsin employers should start using the revised Form I-9 immediately for new hires as well as for employees who require re-verification.
Work Authorization Verification and Document Retention
The purpose of the Form I-9 is to facilitate compliance with the Immigration and Nationality Act, as amended by the Immigration Reform and Control Act of 1986, which prohibits the knowing employment of unauthorized aliens. All employers are required to fill out a Form I-9 for each employee at the time the individual is hired. In addition, employers must maintain the form and make it available for inspection upon request by officers of the Department of Homeland Security ("DHS"), the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor.
Features of the Revised Form
While the revised Form I-9 formally removes a number of documents from the List of Acceptable Documents used to confirm identity and work eligibility, employers should have already been refusing to accept the removed documents since 1997 for purposes of verifying employment eligibility. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") formally mandated a reduction of documents employers could accept from newly-hired employees when verifying employment eligibility. Subsequently, the former Immigrant and Naturalization Service published an interim rule in 1997 in the Federal Register which eliminated documents as specified in the IIRIRA. Despite the 1997 regulations which removed documents from the List of Acceptable Documents, the Form I-9 was not updated to reflect the changes until now.
Ten years after the interim rule removed five documents from the "List A" of the List of Acceptable Documents, the USCIS has revised the Form I-9 to reflect the change. The following documents are not acceptable as proof of both identity and employment eligibility:
- Certificate of U.S. Citizenship (Form N-560 or N-561);
- Certificate of Naturalization (Form N-550 or N-570);
- Alien Registration Receipt Card (I-151);
- Unexpired Reentry Permit (Form I-327); and
- Unexpired Refugee Travel Document (Form I-571)
An unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B) has been added to the List A of the List of Acceptable Documents on the revised Form I-9. The other four documents that establish both identity and employment eligibility are:
- U.S. Passport (unexpired or expired);
- Permanent Resident Card or Alien Registration Receipt Card (Form I-551);
- Unexpired foreign passport with a temporary I-551 stamp; and
- Unexpired foreign passport with an unexpired Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, if that status authorizes the alien to work for the employer
Another change is that an employee is not obligated to provide a Social Security Number in Section 1 of the form unless he or she is employed by an employer who participates in the E-Verify program. A Spanish language version of the Form I-9 is also available for completion by employees in Puerto Rico. Other employers can use the Spanish version as a translation guide for their Spanish-speaking employees, but must complete and retain an English version in their records.
The new Form I-9 includes two pages of instructions and a clear statement of purpose: to document that each new employee is authorized to work in the United States. There is also an anti-discrimination notice prohibiting employers from discriminating against work eligible individuals and reminding employers that they cannot specify which document(s) they will accept from an employee.
USCIS has published a revised "Handbook for Employers, Instructions for Completing the Form I-9" which includes a copy of the revised Form I-9 at the very end. The handbook can be found at: http://www.uscis.gov/files/nativedocuments/m-274.pdf.
Use of the Revised Form I-9 Should be Underway
Although employers were expected to use the revised Form I-9, identifiable by the (Rev. 06.05.07)N in the lower right corner of the form, for all individuals hired on or after November 7, 2007, DHS provided a grace period to transition to the revised I-9, until further notice was provided. By notice published on November 26, 2007, DHS stated that it's "non-enforcement policy will cease as of December 26, 2007."
In sum, as of this writing all employers should be using the revised Form I-9 for new hires as well as for employees who require reverfication. Employers do not, however, need to complete new forms for existing employees.
This article was featured in the January 2008 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul C. Glazer and published by M. Lee Smith Publishers LLC. Reproduced here with the permission of M. Lee Smith Publishers, LLC.
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