It seems like the U.S. Citizenship and Immigration Services (USCIS) never stops fiddling with the Form I-9 or changing its mind about which documents are acceptable in the employment verification process.

In November 2007, the USCIS unveiled a new Form I-9, one that incorporated statutory and regulatory changes that were made to the employer sanctions laws more than 10 years earlier. The November 2007 form eliminated five documents that had been used to verify a person’s identity and employment authorization. To reflect the changes, a new Handbook for Employers, the government manual for completing the I-9 form, was also published.

A little more than a year later, the rules have changed again. The new rules will become effective on February 2, 2009.

Expired Documents Are No Longer Acceptable

By way of background, employers have long been required to verify the employment eligibility of new hires. As part of the verification process, the employer must review the documents that the employee presents to prove his identity and to establish that he is authorized to work in the United States. This must be done within three days of hire.

An employee may present a single document that establishes both identity and employment authorization (e.g., a U.S. passport). These are referred to on the Form I-9 as “List A” documents. In the alternative, the employee may present two documents, one, such as a driver’s license, that establishes identity (referred to on the form as a “List B” document) together with a second document that establishes employment eligibility, such as an unrestricted social security card (referred to on the form as a “List C” document).

Up until now, the rules have allowed employers to accept certain expired documents during the verification process. But with the publication of the new rules, that’s all changed. Beginning on February 2, 2009, only unexpired documents will be acceptable.

The reason for the change? “Being of little use to their owners,” the agency explained, “expired documents fall prey to counterfeiters, who, for a small sum, can substitute unauthorized aliens’ photographs and other identifying information.” Those documents could then be used by “unauthorized aliens” for employment verification purposes. Moreover, an unexpired document is more likely to contain up-to-date security features, making them less vulnerable to fraud.

Note that a document that does not contain an expiration date, such as a social security card, will be deemed to be unexpired.

Technical Matters

A number of other technical changes were introduced by the new rules. Among them:

  1. For several years, U.S. consular posts have been affixing machine-readable immigrant visas (MRIVs) that contain a pre-printed temporary I-551 notation in the foreign passports of persons immigrating to the United States. To update the regulations to reflect this alternate I-551 document, the new rule modifies references in List A to I-551 stamps on unexpired foreign passports to include pre-printed temporary I-551 notation on MRIVs.
  2. The rule removes from List A forms I-688, I-688A and I-688B (certain Employment Authorization Cards) because they are no longer issued, and because any that had been issued in the past have now expired.
  3. The new rule adds Form I-94A next to each reference to Form I-94 (Arrival-Departure Record). The Form I-94A is nearly identical to the Form I-94 except that all fields are computer-generated rather than being annotated by hand.
  4. The rule also replaces references to the “social security number card” to the statutory term “social security account number card.”

Changes to the Form I-9 Itself

There are a number of changes to the Form I-9 itself, the most important of which is a change to the question asking whether someone is a citizen or national of the United States.

Currently, an employee completing the Form I-9 must check one of three boxes at Section 1 of the form, attesting that he is (1) either a “citizen or national of the United States”; (2) a lawful permanent resident; or (3) an alien authorized to work until a specific date. The new form turns three choices into four, with a separate box for someone who is a citizen of the United States, and a different box for a person who is a national of the United States. Separating those two groups, the USCIS says, will eliminate one difficulty that exists when prosecuting those who make false claims to citizenship.

The instructions to the new form also clarify a question about reverification. Noting that certain employees, including asylees and refugees, may leave the expiration date blank on the Form I-9, the USCIS confirms that for these people, reverification does not apply, unless they choose to present evidence of employment authorization that contains an expiration date (e.g., an Employment Authorization Document). A copy of the new Form I-9 is annexed.

Eight Countries Added to the Visa Waiver Program

The VisaWaiver Program allows nationals from certain countries to come to the United States for business or tourism for up to 90 days without a B-1 or B-2 visa. The countries taking part in the program are mostly inWestern Europe, but also include Japan, Singapore, Australia, and New Zealand. In November 2008, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea were added to the list, and as of December 30, 2008, Malta will also be included.

Applications Now Accepted for Electronic System for Travel Authorization (ESTA)

In a rule scheduled to go into effect on January 12, 2009, foreign nationals traveling to the United States under the VisaWaiver Program must first receive electronic travel authorization from Customs and Border Protection (CBP). CBP began accepting applications for this new program on August 1, 2008.

What is the Rule All About?

Under the rule, all VWP travelers who intend to enter the United States will first have to receive an electronic travel authorization through ESTA. To apply, a traveler will log on to the ESTA web-based system and complete an application online (in English) providing the biographical and eligibility information currently required on the (green) I-94Wform. (Eventually, ESTA authorization will replace the I-94W.) Once the application has been successfully completed online, the application will be queried against law enforcement databases. In most cases, ESTA will provide an immediate determination of eligibility for travel. Responses will be: (1) Authorization Approved; (2) Travel Not Authorized; or (3) Authorization Pending.

An approved ESTA travel authorization is valid for two years, or until the traveler’s passport expires, whichever comes first. During that time, a traveler may come to the United States repeatedly without having to apply for another ESTA. Note, however, that ESTA travel authorization is no guarantee of admissibility into the United States; ESTA approval only authorizes a traveler to board a carrier. Once the traveler arrives here, CBP officers make admissibility determinations at the port of entry.

Children, regardless of age, will be required to obtain an independent ESTA authorization, and a third party, such as a relative or travel agent, will be permitted to submit an ESTA application on behalf of any VWP traveler.

When Will the Rule Go into Effect?

The rule will become mandatory on January 12, 2009. However, voluntary applications began to be accepted on August 1, 2008.

At What Point Should a Traveler Apply for ESTA Authorization?

Travelers are not required to have firm plans to travel to the United States before they apply for an ESTA authorization. DHS recommends that if one does have specific plans, the ESTA approval be obtained as soon as the plans are made and no later than 72 hours before departure. However, the system has been designed to accommodate last minute and emergency travelers.

How Do You Apply for an ESTA Travel Authorization?

In order to apply, go to http://www.cbp.gov/xp/cgov/travel/id_visa/esta/ and click on “Apply Now- Electronic System for Travel Authorization,” and follow the instructions. At this time, the application is free of charge.

Again, voluntary applications began to be accepted on August 1, 2008, but mandatory applications will not be required until the rule’s effective date, which is January 12, 2009.

Changes to US-VISIT Program

The Department of Homeland Security’s (DHS) US-VISIT program provides visa-issuing posts and ports of entry with the biometric technology that enables the U.S. government to establish and verify the identity of foreign nationals when they visit the United States.

In many cases, this process begins overseas at a U.S. visa issuing post, where a traveler’s biometrics— digital fingerprints and a photograph—are collected and checked against a watch list of known criminals and suspected terrorists.When the traveler arrives in the United States, DHS collects the same biometrics to verify that the person at the port is the same person who received the visa. Immigration officials use this information to help them make visa-issuance and admission decisions as part of the visa application process or entry inspection.

Unlike names and dates of birth, which can be changed, biometrics are unique and virtually impossible to forge. Collecting biometrics helps the U.S. government prevent people from using fraudulent documents to enter the country illegally. Collecting biometrics also helps protect a person’s identity in the event his travel documents are lost or stolen.

In a new rule that will become effective on January 18, 2009, DHS has expanded the population of foreign nationals who are subject to US-VISIT requirements. For the first time, lawful permanent residents of the United States (“green card” holders) will be required to provide fingerprints, photographs, or other specified biometrics identifiers. Those who are subject to the biometrics requirements include:

  • Lawful permanent residents of the United States;
  • Persons entering the United States who seek admission on immigrant visas;
  • Persons entering the United States who seek admission as refugees and asylees;
  • Canadian citizens who are currently required to obtain a Form I-94, Arrival / Departure Document upon entry or require a waiver of inadmissibility to enter the United States. (This excludes most Canadian citizens entering the United States for purposes of shopping, visiting friends and family, vacation or short business trips.);
  • Persons paroled into the United States; and
  • Persons applying for admission under the Guam VisaWaiver Program.