In a move applauded by many, but sure to cause confusion for employers, U.S. Citizenship and Immigration Services (USCIS) announced on Friday that it has delayed implementation of its regulations requiring use of a new Form I-9. Originally required to use the new form beginning on February 2, 2009, employers must now wait until April 3, 2009 to begin using the recently published form.  

For information about the regulatory changes that have been delayed, see our alert titled “New Form I-9 Revealed.”  

Why has the rule been delayed?

On January 20, 2009, President Barack Obama’s Chief of Staff, Rahm Emanuel, issued a memorandum stating that executive departments and agencies should “[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect.” The American Immigration Lawyers Association (AILA) requested that the memorandum be applied to the I-9 regulation, which was set to take effect on February 2, 2009.  

USCIS agreed on Friday to delay implementation of the rule by 60 days. The delay will allow the government to consider altering the rule and will give the public a 30-day comment period in which to ask questions about or suggest changes to the rule. The reopened comment period ends on March 4, 2009.  

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

Employers must use the new Form I-9 beginning on April 3, 2009. The new form is available on the U.S. Citizenship and Immigration Services (USCIS) website.  

My organization was prepared to use the new Form I-9 beginning on February 2, 2009. Can we go ahead and begin using the form now?

No. Employers should continue to use the old version of the Form I-9 (containing the 06/05/07 revision date) until April 3, 2009. The new Form I-9 reflects changes to the underlying regulations governing the acceptable documents that employees can present to employers to prove that they are authorized to work in the United States. The effective date of the regulations themselves has been delayed. Using the new form might trigger the unintended consequence of unlawfully limiting the documents that a new hire may present to your organization when he begins work.