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In December 2008, U.S. Citizenship and Immigration Services (USCIS) published an interim final rule that revised the Lists of Acceptable Documents for Form I-9, Employment Eligibility Verification, as well as publishing a new Form I-9, dated 02/02/09.  The Obama Administration delayed the implementation of the new Form I-9 to allow additional public comment, but the new Form I-9 is scheduled to become official on Friday, April 3, 2009.  Starting on that date, employers will be required to use the revised Form I-9 for all new hires and to re-verify any current employee whose employment authorization expires on or after April 3, 2009.  An employer may not re-verify a current employee by completing “Section 3 – Updating and Reverification” on a previous version of Form I-9.

The current edition of Form I-9, dated 06/05/2007, will no longer be acceptable on or after April 3, 2009.  Employers who continue to use the 06/05/2007 edition of Form I-9 on and after April 3 may be subject to civil money penalties.  The revised Form I-9 and the updated Handbook for Employers, Instructions for Completing the Form I-9 (M-274), are available at www.uscis.gov.

The new Form I-9 makes changes to the acceptable List A documents offered to prove the employee’s identity and authorization to work.  Three documents have been added to List A (Documents that Establish Both Identity and Employment Authorization) on the Lists of Acceptable Documents:

• A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp;
• 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 nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI; and
• A U.S. Passport Card.

Three documents were removed from List A on the Lists of Acceptable Documents:

• Form I-688, Temporary Resident Card;
• Form I-688A, Employment Authorization Card; and
• Form I-688B, Employment Authorization Card.

Another significant change is that employees must now present only unexpired documents for Form I-9.   Previously, USCIS had authorized employers to accept certain expired documents as evidence of an employee’s identity.

There are no changes in the procedure by which Form I-9 is completed by the employer and the employee.

If you have further questions, please do not hesitate to contact any of our labor and employment attorneys.

This Alert has been provided for information of clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Alert without seeking professional counsel.