Since the enactment of the Immigration Reform and Control Act of 1986 (“IRCA”), all U.S. employers have been required to document that each newly hired employee (citizen and non-citizen) is authorized to work in the United States via the proper completion of Form I-9, Employment Eligibility Verification.
On Recently, the U.S. Citizenship and Immigration Service (“USCIS”) revised the Form I-9 to meet the requirements of the Illegal Immigration and Immigrant Responsibility Act of 1996 (“IIRIRA”) which reduced the number of documents that employers may accept when verifying that an employee is authorized to work in the United States.
The revised Form I-9, which includes the revision date - Rev. 06/05/07)N - printed in the lower right corner of the form, removed the following five documents from List A of the List of Acceptable Documents that employees may present to an employer to establish that they are authorized to work in the United States: Certificate of U.S. Citizenship (Form N-560 or N-570), 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). According to the USCIS, these forms were removed because they lacked sufficient features to help deter counterfeiting, tampering and fraud.
Effective November 7, 2007, all employers were required to begin using the revised Form I-9 for all new employees hired on or after November 7, 2007. Unless an employee requires re-verification, employers do not have to complete new Form I-9s for existing employees. Recognizing that employers may need a period of time to transition to the revised form, the USCIS has explained that employers have until December 26, 2007 to begin using the new form for all new employees. Employers that fail to use the revised form will be subject to applicable criminal penalties under 8 U.S.C. 1324(a) for bringing in and harboring certain aliens.
The revised Form I-9 and the “Handbook for Employers, Instructions for Completing the Form I-9” are available online at www.uscis.gov. The revised Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and the U.S. territories may use the Spanish form as a translation guide for Spanish-speaking employees, but the employee must complete the English version for the employer’s records.
According to Frank Del Barto, a member of the Firm’s Employment and Labor Practice Group, the introduction of a revised Form I-9 represents a great opportunity for employers of all sizes to review their hiring procedures to ensure compliance. Frank notes that many smaller employers are either completely unaware of the Form I-9 requirements or they have shifted the completion and verification responsibilities over to a lower-level employee with little training. In contrast, larger employers are often shocked to learn that different verification procedures are being followed by their various divisions or subsidiaries. As the debate over immigration reform intensifies with the approach of the election year, and as the states and federal government continue to battle in the courts over various employment verification procedures, employers should take this time to review their own verification procedures. Regardless of the outcome of the immigration debates and court cases, all employers in the U.S. will continue to be the first line of defense in ensuring only properly verified and authorized employees are members of the labor force. Frank notes that attorneys from the Firm’s Employment and Labor Group and its Immigration Group have recently assisted clients in conducting either a complete audit or a sampling of their Form I-9 intake and retention procedures at fees negotiated in advance based on the size and scope of the project. Contact Frank or any member of the Employment and Labor Practice Group for further information.