The new year is bringing many changes in immigration law and procedure, and Squire Sanders will continue to keep you informed of all the latest developments. In this Alert, you will find updates on:  

  • The new list of acceptable documents for the Form I-9 employment eligibility verification process;
  • New categories of non-US citizens including lawful permanent residents required to provide biometric data upon entry to the United States through the US-VISIT program; and
  • Information on the lawsuit filed by the US Chamber of Commerce challenging the federal contractor E-Verify rule and a postponement of its implementation until February 20, 2009.

Department of Homeland Security Interim Rule Revises List of Acceptable Documents for Employment Eligibility Verification (Form I-9) Process

The Department of Homeland Security (DHS), US Citizenship and Immigration Services (USCIS), issued an interim rule revising the list of documents acceptable for the employment eligibility verification process. The interim rule, published on December 17, 2008, supersedes a proposed rule issued by the former Immigration and Naturalization Service (INS) in 1998, which reduced the list of acceptable documents but was never published as a final rule. The rule is effective February 2, 2009.

The most significant change made by the rule is the requirement that all documents presented during the employment eligibility verification process must be unexpired. Currently, US passports and all Form I-9 List B documents (documents that establish only identity) are acceptable, even if they are expired. The rule now requires unexpired documents for Form I-9 to ensure that acceptable documents reliably establish identity and employment authorization. DHS reasons that the new requirement is necessary because expired documents often fall prey to counterfeiters and forgers.

The rule makes additional changes to List A (documents that establish both identity and employment authorization) on Form I-9. Two documents have been added to List A: (1) a temporary I-551 printed notation on a machine-readable immigrant visa in addition to a foreign passport with a temporary I-551 stamp and (2) a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A, indicating non-immigrant admission under the Compact of Free Association between the United States and the FSM and RMI.

The rule also eliminates three documents from List A: (1) Form I-688, Temporary Resident Card, (2) Form I-688A, Employment Authorization Card and (3) Form I-688B, Employment Authorization Card. USCIS no longer issues these documents, and all previously issued documents have expired.

Finally, the rule revises Form I-9 itself including changes to the employee attestation section and additional instructions that clarify when employers need to reverify certain employees. Specifically, the employee attestation section is changed by separating the categories of "citizen of the United States" and "noncitizen national of the United States" to address difficulties the government has encountered in prosecuting individuals who allegedly make claims of false US citizenship on the form.

Employers must begin using the revised Form I-9 for all new hires and all reverifications beginning February 2, 2009. The current edition of Form I-9, dated June 5, 2007, will no longer be valid for use as of February 2, 2009, and employers who continue to use the old form may be subject to civil penalties. In the meantime, employers will find an informational copy of the revised Form I-9 online at www.regulations.gov. Once posted by DHS, the revised Form I-9 will be available at www.uscis.gov/i-9.

DHS is soliciting public comments on the interim rule, specifically with regard to whether the rule's prohibition on the use of expired documents for Form I-9 should be modified to permit employers to accept List B identity documents that have expired within the last 90 days (or other limited time period) from the date they are presented to the employer for Form I-9. Such comments are due by February 2, 2009.

For more information regarding the interim rule or the commenting process, or for information regarding Form I-9 compliance practices, please contact your principal Squire Sanders lawyer or one of the individuals listed in this Alert.

DHS Announces Final Rule Expanding US-VISIT Program to Lawful Permanent Residents and Other Categories of Non-US Citizens

DHS announced a final rule on December 18, 2008 that expands the categories of non-US citizens required to provide fingerscans, photographs or other biometric data upon entry to the United States through the US-VISIT program. Our May 2008 Immigration Alert discussed the US-VISIT program in detail. The final rule is effective January 18, 2009.

Under the final rule, the following classes of individuals will be added to the categories of non-US citizens that must provide biometric data upon entry to the United States:  

  • Lawful permanent residents (LPRs);
  • Persons seeking admission on immigrant visas;
  • Refugees and asylees;
  • Certain Canadian citizens who receive a Form I-94 at inspection or who require a waiver of inadmissibility;
  • Persons paroled into the United States; and
  • Persons applying for admission under the Guam Visa Waiver Program.  

Exceptions to the final rule include Canadian citizens seeking short-term admission for business or pleasure under B visas and individuals traveling on A and G visas.

Recently, Paul Morris, executive director for admissibility and passenger control for Customs and Border Protection, stated that LPRs entering through land ports of entry will be required to provide fingerprints only if they are referred to secondary inspection. Currently, not all land ports have 10-print fingerscan capability, but installation at all ports is expected to be completed within the next month.

The final rule is already the subject of much criticism, especially concerning the collection of biometric data from LPRs, who, in some cases, have been living in the United States for many years. Litigation challenging the implementation of this rule may be on the horizon.

For more information regarding the final rule, or for information regarding US-VISIT compliance practices, please contact your principal Squire Sanders lawyer or one of the individuals listed in this Alert.

US Chamber of Commerce Files Lawsuit Challenging the Legality of Requiring Federal Contractors to Use the E-Verify System

As discussed in our December 2008 Immigration Alert, the final rule requiring federal contractors to use E-Verify was supposed to take effect on January 15, 2009. A recent lawsuit, however, will delay the implementation of the rule.

The lawsuit, which was filed by the US Chamber of Commerce on December 23, 2008, asks the court to declare President Bush's executive order and the final rule illegal and void because federal law explicitly prohibits the Secretary of Homeland Security from making E-Verify mandatory or using it to re-authorize the existing work force. The US Chamber of Commerce negotiated a suspension of the final rule with the issuing councils until February 20, 2009.