As a holiday “gift” to employers, the U.S. Department of Homeland Security (DHS) published revised I-9 regulations and a new Form I-9 on December 17, 2008 in the Federal Register. Employers must use the new form beginning on February 2, 2009.  

What’s new?

DHS has made several changes to the I-9 regulations and to the Form I-9:  

  • Expired documents are no longer acceptable. Under the current regulations, a List B document (such as a driver’s license) is acceptable to prove an employee’s identity even if the document had expired. In addition, U.S. citizens may present an expired U.S. passport as evidence of both identity and employment authorization. However, the new regulations and the new Form I-9 indicate that an employer cannot accept an expired document, whether it be a U.S. passport or List B document, for I-9 purposes. DHS made this change to reduce identity theft, counterfeiting, and fraud.
  • U.S. nationals and U.S. citizens have separate status boxes in Section 1. Section 1 of the Form I-9 has been changed to include four, rather than three, status options. On the current Form I-9, U.S. citizens and noncitizen nationals are grouped together. On the new form, a U.S. national must select a separate box in Section 1 than should be selected by a U.S. citizen. U.S. nationals include individuals born in American Samoa, certain children of noncitizens born abroad, and certain former citizens of the former Trust Territory of the Pacific Islands. DHS made this change, in part, to make it easier to prosecute individuals who make false claims to U.S. citizenship.
  • Legacy Employment Authorization Cards and Temporary Resident Cards are no longer acceptable. DHS no longer issues Form I-688 (“Temporary Resident Card”) and Forms I-688A and I-688B (“Employment Authorization Cards”). Moreover, all I-688 documents that were previously issued by DHS have expired. Instead, DHS now issues Form I-766 (“Employment Authorization Document”), which remains a valid List A document for I-9 purposes.
  • Documents have been added as acceptable evidence of identity and of employment authorization. DHS added the U.S. Passport Card and passports from the Federated States of Micronesia and the Republic of the Marshall Islands to the Form I-9 as valid List A documents.  

DHS made other minor technical changes and updates to the Form I-9. The above-listed changes include the most notable updates.

When must we start using the new Form I-9?

Employers must use the new Form I-9 beginning on February 2, 2009. The new form will be made available on the U.S. Citizenship and Immigration Services (USCIS) website in the near future. DHS has also announced that an updated version of the I-9 Handbook for Employers is forthcoming.  

Does this mean that we need to complete new I-9s for all of our employees?

No. The new Form I-9 should only be used for new hires on or after February 2, 2009. Existing employees should not be required to complete new I-9 forms as a result of these changes.