On Friday, January 30, 2009, USCIS announced that it was delaying the implementation of the new I-9 form and regulations published during the final days of the Bush Administration. On January 20, President Obama issued an executive order requiring review of all new regulations not yet effective.

Implementation of the new I-9 form, which for the first time requires new employees to distinguish between a representation of U.S. citizenship or non-citizen nationality and also reduces the number of acceptable documents, has been delayed for another 60 days. The new effective date for this form and the new requirements is April 3, 2009. The regulations also prohibited the use of some expired documents to demonstrate citizenship or identity. Existing regulations permit the presentation of expired driver’s licenses or passports. The now delayed regulation, however, requires all documents to be valid at the time they are submitted.

Unlike prior changes in the I-9 form, employers cannot use the new form until its effective date, and must use it after the effective date. Prior changes permitted the use of either form until the effective date of the new form, usually announced several months in advance. Thus, employers should continue to use the existing I-9 form until April 3, 2009. It is also possible that the new Administration may change the form or regulations before the new effective date.