On November 7, 2007, U.S. Citizenship and Immigration Services (USCIS) released a new Employment Eligibility Verification Form I-9 for employers to use in verifying a new employee's employment eligibility. At the same time, USCIS published an updated "Handbook for Employers" that provides instructions to employers in completing the I-9 process. Below are the 9 top things employers need to know about the new Form I-9:

1. THE EFFECTIVE DATE OF THE REVISED FORM IS COMING SOON

The revised Form I-9 will become effective once a notice has been published in the Federal Register. While no official date has been given for publication, USCIS indicates on their website that the old Form I-9 (dated 05/31/05) will only be accepted until 12/07/07. USCIS is encouraging employers to use the newly revised Form I-9 immediately, even though the Federal Register notice has not yet been published.

2. THERE ARE NO SUBSTANTIVE CHANGES TO THE FRONT PAGE OF THE FORM

While there were some formatting changes, the text of the front page of the revised I-9 is the exact text of the previous version. To view the revised Form I-9, please click here.

3. THE FORM INCORPORATES PREVIOUSLY-ANNOUNCED CHANGES TO THE LIST OF ACCEPTABLE DOCUMENTS

USCIS has updated the list of acceptable documents to incorporate (1) changes to the list made pursuant to federal regulations aimed at reducing fraud that were published in 1997 but that had not previously been enforced as an act of prosecutorial discretion, and (2) recent versions of USCIS documents.

Five documents that were previously listed as acceptable List A documents have been removed from the Form I-9:

  • Certificate of U.S. Citizenship (Form N-560 or N-570)
  • Certificate of Naturalization (Form N-550 or N-570)
  • Alien Registration Receipt Card (Form I-151)
  • Unexpired Reentry Permit (Form I-327)
  • Unexpired Refugee Travel Document (Form I-571)

One document was added to the list of acceptable List A documents:

  • Newest version of the Employment Authorization Document (Form I-766)

One description of an acceptable List A document was amended:

  • Replaces "unexpired foreign passport with an attached Form I-94 indicating unexpired employment authorization" with
  • "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 the status authorized the alien to work for the employer."
  • The reason for this change: Certain nonimmigrant visa categories limit employment authorization to a particular employer or category of employers, and the previous language did not make this distinction.

4. EMPLOYERS MAY NO LONGER REQUIRE EMPLOYEES TO PROVIDE A SOCIAL SECURITY NUMBER IN SECTION 1 WITH ONE EXCEPTION

Pursuant to the Privacy Act, employers may no longer require that an employee provide his or her social security number in section 1 of the Form I-9. As an exception to that rule, if an employer participates in USCIS's E-Verify program, the employer may require a social security number. To view the Handbook for Employers which addresses this change and outlines the USCIS's E-Verify program, please click here.

5. PARTICIPATION IN E-VERIFY RESTRICTS THE LIST B DOCUMENTS AN EMPLOYER MAY ACCEPT

If the employer participates in the E-Verify program, then the List B document provided by an employee must bear a photograph of that employee.

6. THE RECEIPT RULES FOR I-9 DOCUMENTS ARE MORE CLEARLY SPELLED OUT

The receipt rules discussed in USCIS's 2005 publication "The Form I-9 Process in a Nutshell" have been clearly set out to apply in three instances:

  • Replacement Receipts for Lost, Stolen or Destroyed Documents
  • Permanent Resident Receipts
  • Asylee/Refugee Receipts

7. USCIS HAS PROVIDED MORE DETAILED GUIDANCE ON ELECTRONIC RETENTION

USCIS has outlined requirements for electronic storage and retention of Form I-9s and has provided guidance for an employer's obligation with respect to making their electronic records available upon a request by a federal agency to review the retained forms.

8. USCIS HAS PROVIDED MORE DETAILED GUIDANCE REGARDING UNLAWFUL DISCRIMINATION IN THE HIRING AND I-9 PROCESS

USCIS has outlined the various causes of action for employment-based discrimination under the Immigration and Nationality Act and Title VII with respect to recruitment, hiring, and the I-9 process. USCIS has also provided tips to avoid discrimination in those processes.

9. FOR REVERIFICATION, EMPLOYERS SHOULD USE THE REVISED FORM I-9

If an employer must reverify an employee's authorization to work, the latest revised Form I-9 should be used. USCIS recommends taking the revised form, writing the employee's name in section 1, completing section 3, and retaining the reverification with the original Form I-9.

Finally, USCIS has developed a short update and accompanying fact sheet. To view the USCIS update and fact sheet, please click here.