Effective February 2, 2009, employers will be required to complete a new, revised Form I-9 Employment Eligibility Verification for (a) all newly hired employees and (b) reverification of certain employees with temporary work authorization, upon the expiration of that authorization. A new Form I-9 should not be completed for existing employees. The most significant changes in the new Form I-9 from the current Form I-9 include a reduced list of acceptable documents, a revised instructions sheet and a new Form M-274 Handbook for Employers.

Under the new Form I-9, all documents presented by employees must be unexpired. The following documents will be acceptable under List A:

  • U.S. Passport or U.S. Passport Card;
  • Permanent Resident Card or Alien Registration Receipt Card (Form I-551);
  • Foreign passport containing a temporary I-551 stamp or I-551 printed notation on a machine-readable immigrant visa;
  • Employment Authorization Document containing a photograph (Form I-766);
  • For certain non-immigrants, a foreign passport with Form I-94 or Form I-94A; and
  • Passport from the Federated States of Micronesia or the Republic of the Marshall Islands with Form I-94 or I-94A.

The following documents will no longer be accepted under List A:

  • Expired documents, such as U.S. passports;
  • Temporary Resident Card (Form I-688);
  • Employment Authorization Card (Form I-688A); and
  • Temporary Employment Authorization Card (Form I-688B).  

The new Form I-9 will be available on the U.S. Citizenship and Immigration Services (USCIS) website on February 2, 2009, at http://www.uscis.gov/files/form/I-9.pdf. The form can also be requested from the USCIS National Customer Service Center at 1.800.375.5283. The new USCIS Handbook for Employers (Form M-274) can be obtained at http://www.uscis.gov/files/nativedocuments/m-274.pdf.

Given the recent increased enforcement of employer obligations to verify the identity and employment authorization of all employees, and the criminal penalties for not complying, employers should make certain they are in compliance. Employers may want to seek legal counsel to receive guidance on I-9 issues, including the following: verification of new hires; reverification of existing employees; updating I-9s; early completion of Form I-9; successor liability for I-9 forms completed by a previous owner/employer; I-9s for independent contractors; reverification of rehired employees; remote hires; making I-9 corrections; avoiding the increased civil fines for paperwork violations relating to I-9s; conducting an internal audit of their files; or reviewing their company's I-9 forms for compliance.

E-Verify Update

E-Verify is a voluntary program in which employers can elect to participate to check the immigration status of their employees. Approximately 100,000 employers are now enrolled in E-Verify. In addition, President Bush signed an Executive Order, and the administration issued a final rule in November 2008, that requires federal contractors to participate in E-Verify, unless they qualify for an exemption, or otherwise may risk losing their federal contracts. The final rule was scheduled to take effect on January 15, 2009. However, the Bush administration has agreed to delay implementation of the federal contractor E-Verify requirement until February 20, 2009. Thus, solicitations for federal contracts and federal contract awards will not contain the new E-Verify provision if issued prior to February 20, 2009.

The delay in implementation is the consequence of a lawsuit filed in December 2008 in Maryland federal district court, Chamber of Commerce of the United States of America v. Chertoff, which is ongoing. On January 8, 2009, the parties reached an agreement whereby the U.S. government agreed to suspend implementation of the final rule until February 20, 2009. The plaintiffs, headed by the U.S. Chamber of Commerce, have challenged the validity of the final rule, and it is now uncertain whether the rule will be implemented on February 20, 2009 - or ever. As of January 20, 2009, the Obama administration will assume responsibility for deciding whether to continue the previous administration's policy initiatives, including whether to defend against the federal court lawsuit and to persist in efforts to implement the final rule.

If the final rule does take effect, all federal contractors and subcontractors will be required to verify the employment of the following workers through E-Verify, if they were hired after November 6, 1986:

  • All newly hired workers, whether working on the government contract or not;
  • All workers assigned to the federal contract, whether newly hired or not; and
  • All workers assigned to the contract who are contract workers or subcontractors.  

Federal contracts awarded and solicitations issued after February 20, 2009 (or whenever the rule takes effect) will include a clause committing government contractors to use E-Verify. Contracts exempt from this rule will include the following:

  • All contracts in which the Covered Prime Contract Value Threshold is less than $100,000;
  • Subcontracts in which the flow-down value of the contract is less than $3,000; and
  • Contracts that are for commercially available off-the-shelf items.  

Moreover, contractors will be required to enroll in E-Verify and verify their employees according to the following deadlines:

Contractors using E-Verify for the first time must:  

  • Within 90 days of enrollment verify new and existing employees, with an additional 30 days for existing employees newly assigned to the contract.  

Contractors already enrolled and using E-Verify must:  

  • Within 90 days from the contract award verify employees assigned to the contract;
  • Within 3 days from the contract award verify new hires if the contractor has been enrolled in E-Verify for 90 days or more; and
  • Within 90 days from the contract award verify new hires if the contractor has been enrolled in E-Verify for less than 90 days.  

Contractors will also have the option of verifying all employees, including those not assigned to the contract, by notifying the U.S. Department of Homeland Security (DHS) and initiating verifications within 180 days of the notice. Employees hired before November 6, 1986, are exempt from these requirements.

At present, however, federal contractors should be aware that they are obligated to comply with the E-Verify requirements only when they become parties to a federal contract that includes the E-Verify provision. Until the final rule takes effect, no obligation exists to implement an E-Verify program.

We will continue to follow developments in this area closely and will issue updated Alerts as events warrant.

Social Security "No-Match" Letters Update

DHS issued a final rule on August 15, 2007, and again on October 28, 2008, setting forth requirements for employers who receive "no-match" letters from the Social Security Administration (SSA) or a letter regarding employment verification from the DHS. However, the no-match letter process was halted on August 31, 2007, in response to a federal court lawsuit, when U.S. District Judge Breyer of the Northern District of California granted a temporary restraining order blocking the government from implementing the rule. The judge subsequently issued a preliminary restraining order against DHS on October 15, 2007, which remains in force. Judge Breyer found that the plaintiffs' lawsuit raised serious questions on whether the rule is inconsistent with the statute and amounts to overreaching by the DHS and SSA. Moreover, the judge determined that the balance of hardships weighs sharply in favor of staying implementation of the rule while it is undergoing a court challenge.

Despite efforts by the government in December 2008 to have the stay lifted, Judge Breyer was not persuaded and ruled that the injunction should remain in place. Consequently, the final rule will not be implemented, and SSA will not send no-match notices to employers while the litigation continues. We will issue a new Alert if the injunction is lifted or if any significant changes occur.