Effective February 2, 2009, USCIS has amended the I-9 rules concerning the boxes a worker must check about status and concerning what documents an employer can and must accept from workers to verify their identity and employment authorization at the time of hire. The new I-9 will split the box to assert citizenship or nationality into two boxes. Expired documents are no longer acceptable for any purpose. And USCIS has added some documents to and removed other documents from the list.

Citizenship and Nationality Split Out

Form I-9 first requires the worker to provide brief biographic information and to check a box asserting his or her immigration status. Before, the first box stated “A Citizen or National of the United States.” The new I-9 will split that into two boxes, for a total of four boxes, so that a worker must check that he is one of the following: U.S. citizen, U.S. national, U.S. permanent resident, or alien otherwise authorized to work.

This has far more significance than it first appears. A worker who was not a citizen or national but had previously checked the combined box could argue, in some enforcement proceeding, that he had meant he was a national rather than a citizen. He would do this in order to avoid being found to have made a “false claim to U.S. citizenship,” because a false claim to citizenship carries the harsh penalties of making one permanently inadmissible and permanently deportable with no waiver (other than possible “cancellation of removal”—a very limited remedy). The law is so harsh because it has been relatively easy to make such a claim, and heavy penalties were seen as necessary to deter false claims to such a helpful status.

Now a worker who checks the “U.S. citizen” box will be subject to those harsh penalties. It would seem that USCIS might have emphasized those penalties in making this I-9 change, but it did not. Also it would seem that USCIS might have instructed employers to inquire further when a worker makes a claim to the relatively rare status of “U.S. national,” but it did not, and the prospect remains that unauthorized aliens could use false documents, check the “U.S. national” box, and avoid the harshest penalties of false claim to citizenship.

Expired Documents No Longer Acceptable

DHS has finally prohibited acceptance of expired documents. In the past a worker could use an expired U.S. passport (List A) or any expired identity card on List B. Now, if a document has an expiration date, that date must not have been reached before the date of hire when the employer reviews documents. Nevertheless, the expiration after hire date of identity documents or of documents of non-expiring status (such as passport as evidence of citizenship or I-551 as evidence of permanent residence) do not trigger a requirement to re-verify an I-9. The only expirations that trigger a re-verification requirement are of documents that evidence temporary employment authorization (such as Form I-766).

Other Changes for Acceptable Documents

USCIS has added some documents to and removed other documents from the List A and List C documents of employment authorization. We present the document changes in terms of the immigration status they represent:

Citizen:

  • Removed: Expired passport—no longer acceptable
  • Added to List A: Passport card (a new creation only recently available)

National

  • No change. Non-citizen nationals are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of non-citizen nationals born abroad. While subtly implying that few people hold this status, USCIS has not equipped employers to scrutinize workers’ claim “nationality.” Nationals might present a wide array of documents under the I-9 lists.

Permanent Resident

  • Added to List A: Temporary I-551 printed notation on a machine-readable immigrant visa. Holders of this “document” have obtained an immigrant visa outside the United States and have used it to enter the U.S., normally when first becoming a permanent resident but sometimes when having been outside the U.S. for a year or more or having lost a permanent resident card while abroad.
  • Possibly changed as “Receipt”: Temporary I-551 stamp on I-94 or I-94A card with photo is now stated in regulations to require also an unexpired foreign passport. This seems to be a USCIS mistake in the new regulation, but it will take time to clear it up. Employers presented with an I-94 or I-94A containing a temporary I-551 stamp and photo but no passport should contact the Office of Special Counsel for direction.

Alien Otherwise Authorized to Work

  • Added to List A: Passport for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI
  • *Removed: Forms I-688, I-688B, and I-688B. These were highly counterfeitable cards made in unsecure facilities and were not tied to a database susceptible to electronic verification. Their production was discontinued longer ago than the period of any of their validity, so there should be none in circulation.

Effective Date

The changes take place on February 2, 2009, which is 45 days after the notice about the changes was published in the Federal Register. Until the effective date, employers generally should not use the new rules to refuse employment of a worker who presents an expired passport or identity document, and to do so could be considered “document abuse” and a violation of the anti-discrimination laws also associated with I-9 requirements. Nevertheless, an employer should inquire further of a worker and seek to contact the Department of Homeland Security about the presentation of a Form I-688, I-688A, or I-688B, given that USCIS has stated that no such valid documents should exist.

It would seem necessary for USCIS to publish the new Form I-9 before the effective date so that employers can have the new form ready for use on time, but doing so will increase the chances of encouraging confused employers to refuse employment to workers who may only have an expired identity card and have not obtained a replacement.

Persons anticipating new employment should quickly apply for compliant cards if their existing cards have expired.