News Updates
Newly-Amended I-9 “Employment Eligibility Verification” Form Required Effective 12/26/07
On 11/26/07 U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register regarding the new I-9 Employment Eligibility Verification Form (revision date 6/5/07). Use of the new I-9 Form will be required effective 12/26/07.
The new I-9 Form; a revised “Handbook for Employers, Instructions for Completing the Form I-9” (Form M-274, revision date 11/1/07); and a USCIS FAQ regarding the use of the new I-9 are available at www.uscis.gov. The USCIS publication entitled “About Form I-9, Employment Eligibility Verification” also contains important reminders about the I-9 process, completion deadlines, and documentary and record retention requirements.
The “Guide to Selected Travel and Identity Documents” is useful, as it contains pictures of documents which are often useful for individuals responsible for I-9 completion on behalf of the employer.
The New I-9 Form, Revision date 6/5/07
The new I-9 contains an updated list of acceptable identity and employment authorization documents that reflect the current regulations. Use of the new form will be required effective 12/26/07. That is, the new form will be required for any employee hired on or after 12/26/07, or for any employee whose I-9 employment authorization will expire and therefore requires re-verification on or after 12/26/07.
The 6/5/07 version of the I-9 is currently the only valid I-9 form available. USCIS has advised that it expects employers to begin using the new form immediately. However, penalties will not be assessed against any employer who uses the old form (revision date 5/31/05) prior to 12/26/07, given the 30-day notice period required by law.
On or after 12/26/07, employers who fail to use Form I-9 (Rev. 6/5/07) may be subject to all applicable penalties, as enforced by U.S. Immigration and Customs Enforcement (ICE), the U.S. Department of Labor (DOL) and/or the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices.
Important advisory: It is not necessary to re-verify or complete a new I-9 for individuals whose I-9’s were properly completed prior to 12/26/07 using a prior version of the I-9 Form. In fact, it may be considered discriminatory for an employer to do so.
About the New I-9
The Illegal Immigration and Reform Act of 1996 amended the Immigration and Nationality Act to reduce the number of documents that an employer may accept from newly-hired employees when verifying their identity and employment eligibility (work authorization). On 9/30/97 the Immigration and Naturalization Service (INS) published an Interim Rule implementing those amendments. However, the INS did not concurrently amend the I-9 Form. As a result, the I-9 (including the most recent 5/31/05 version) reflected an outdated list of acceptable documents.
Because the 1997 Interim Rule was limited to Form I-9 List A documents, the amended Form I-9 reflects changes to the List A documents only. List A documents are those that evidence both identity and employment eligibility.
The amended I-9 Form reiterates that the following documents are not acceptable List A documents, and omits them from the list on page 2 of the I-9:
1. Certificate of U.S. Citizenship (Form N-560 or N-570)
2. Certificate of Naturalization (Form N-550 or N-570)
3. Alien Registration Receipt Card (Form I-151 – a really old version of the green card)
4. Unexpired Re-entry Permit (Form I-327)
5. Unexpired Refugee Travel Document (Form I-571)
Acceptable List A Documents:
1. U.S. passport (expired or unexpired)
2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
3. An unexpired foreign passport with a temporary I-551 stamp
4. An unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, I-688B)
5. An 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
Provision of a Social Security Number (SSN)
Internal Revenue Service regulations do not require a SSN in order for an individual to begin employment. The amended I-9 now instructs employees that providing their Social Security Number in Section 1 of the form is voluntary.
The SSN is only required in two situations:
1. If the employer participates in E-Verify (the employment eligibility verification program formerly known as Basic Pilot or EEV).
2. If an employee presents their Social Security Number to their employer as evidence they are authorized to work in the U.S. (that is, as a List C Document), the employer MUST record the SSN in Section 2 of the Form I-9.
Notwithstanding the above, note that the employer will be required to provide the employee’s SSN, or a taxpayer Identification Number, to the State in conjunction with their quarterly payroll reports.
Enforcement of I-9 Violations
The documents reflected on List A of the newly-amended Form I-9 have been the only acceptable documents since 1997. Therefore, employers should not have been accepting documents not included on the regulatory list. However, as these impermissible documents were still listed as acceptable on the I-9 form itself, INS and DHS withheld enforcement and civil monetary penalties for violations associated with the changes made by the 1997 interim rule as a temporary transitional measure. With an amended I-9 now available that includes the correct List A, DHS has advised that the non-enforcement policy will cease as of 12/26/07.
Important Advisory: Worksite enforcement is increasing nationwide pursuant to a directive from the highest levels of the government. On 11/6/07, the Department of Homeland Security published a Fact Sheet entitled “Border Security and Immigration Enforcement.” In Fiscal Year 2007 worksite enforcement operations have resulted in 863 criminal arrests; 4077 administrative arrests; and $30 million in criminal fines, restitutions and civil judgments levied against employers for violation of employment authorization laws. In order to protect against liability, it is imperative that employers take proactive steps to ensure compliance with U.S. immigration laws.
This is a good time to audit your I-9’s company-wide to ensure that your company/ university/ institute is in compliance with I-9 regulations. In the event of an audit, the employer will most likely be provided an opportunity to make corrections to technical violations or omissions on the I-9, but the timeframe for such corrections is generally insufficient, especially for large companies. Technical, non-willing violations will result in a monetary penalty per violation. Note that one I-9 may contain several technical violations, at $1000 per violation. If ICE, DOL, or the Justice Department’s Office of Special Counsel for Unfair Immigration-Related Employment Practices determines there is a knowing, willful violation, or a pattern and practice of violations, the penalties may include criminal charges against the individual who signed the I-9, as well as the officers/ board of directors of the employing entity.
E-Verify (Employment Eligibility Verification)
E-Verify (formerly known as the Basic Pilot Program) is administered by USCIS and the Social Security Administration (SSA). It allows employers to electronically verify the employment eligibility status of newly-hired employees. E-Verify participants electronically submit information provided on the Form I-9, and the system queries databases of the SSA and Department of Homeland Security (DHS) to verify the validity of the documents/ information provided on the I-9.
Details of how the E-Verify program works are beyond the scope of this update, but employers can obtain additional information at www.dhs.gov.
Note that an employer’s participation in E-Verify does not provide the employer a safe harbor. That is, participation does not protect an employer from prosecution or liability for immigration violations. The raids which took place earlier this year at the Swift Meat Packing Plants are a prime example. Swift was participating in E-Verify, yet significant civil and criminal penalties were levied against the employer for immigration violations. Granted, the immigration violations in that case were egregious, with a demonstrated pattern and practice of violations. However, the fact remains that participation in E-Verify did not protect the employer, and may have in fact exposed the employer to additional liability as incriminating information was more readily available to the enforcement agencies.
Although immigration law is federal, several states have passed their own laws which impose additional or different employment verification requirements on employers. For example, the State of Colorado enacted legislation requiring the use of E-Verify, and retention of copies of documents used in support of an I-9. In Arizona legislation will go into effect on 1/1/08 which will require employers to participate in E-Verify, and failure to do so may result in the loss of the employer’s business license. Illinois, on the other hand, is suing the federal government, alleging that the use of E-Verify is discriminatory due to the error rate of the program. Illinois is taking the position that it will refuse to allow the use of E-Verify in the state until the program can demonstrate a 99% accuracy rate.
State legislation regarding employment eligibility verification falls within the context of employment law, rather than U.S. immigration law. As a result, LMAC cannot advise regarding compliance with these state laws. However, we strongly advise that employers discuss these state requirements with their general counsel/ employment law attorneys to ensure they are in compliance with applicable state employment laws.
For your reference, states that have enacted legislation that mandates the use of EEV include Arizona, Colorado, Georgia, and Oklahoma. States that have their state agencies participate in EEV: Indiana, Missouri, North Carolina, and Pennsylvania. States that have legislation pending that mandates public employers to verify new hires using EEV: Arkansas, California, Florida, Kansas, Kentucky, Louisiana, Maryland, South Carolina, Texas, and Tennessee. States that have legislation pending which would mandate all employers (public and private) to verify new hires using EEV: Missouri, Rhode Island, Virginia, and Utah.
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