The federal government in the fall of 2007 issued a formal notice in the Federal Register obligating all U.S. employers to use a newly revised version of Form I-9, Employment Eligibility Verification for all employees hired on or after December 26, 2007. Form I-9 is used by employers to verify the identity and employment eligibility of new hires. To aid employers in preparing I-9 forms, U.S. Citizenship and Immigration Services (USCIS) has issued the revised Handbook for Employers: Instructions for Completing the Form I-9, which is available free of charge from USCIS.
The following discussion, in question-and-answer format, helps explain the significance of the new Form I-9 and Handbook for Employers.
1. What’s new on the I-9?
Employers will, in fact, find the new Form I-9 looks almost exactly like the one they have been using for years. List A—which lists documents employees can present to establish identity and employment eligibility—is the area where most of the differences lie. Form I-9 was primarily redesigned to bring this list into compliance with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which reduced the number of documents employers could accept. Although the law went into effect in 1997, Form I-9 was not updated to reflect the changes.
2. What documents were taken off the list of acceptable documents?
Five documents were taken off of the list, and one document was added. The new Handbook for Employers provides a good summary of these documents. The five documents that can no longer be accepted as proof of employment eligibility and identity are:
- Certificate of U.S. citizenship (Form N-560 or N-561)
- Certificate of naturalization (Form N-550 or N-570)
- Alien registration receipt card (I-151)
- Unexpired re-entry permit (Form I-327)
- Unexpired refugee travel document (Form I-571)
According to the government, these documents were taken off of the list because they lacked features to prevent fraud or tampering. The one immigration document that was added to list A is an unexpired employment authorization document (Form I-766).
3. Must employers use the new Form I-9?
Yes. Employers are legally obligated to use the new Form I-9 for all employees hired on or after December 26, 2007.
4. Are there advantages to the new Form I-9?
The list of acceptable documents on the new version of the Form I-9 is shorter, cleaner and in compliance with current law. Not everyone finds it favorable, however.
For the past decade, the government has advised employers not to accept the five documents excluded by the law—even though they continued to appear on the list of acceptable documents. Most employers followed that guidance and long ago trained their staff accordingly. For them, the new Form I-9 is consistent with their current practices.
Other stakeholders find that streamlining the I-9 process for employers has shifted some burdens to legal immigrants and citizens—who may encounter delays or complications in securing new employment by having fewer document options. For example, the re-entry permit, no longer on the list, is arguably as tamper and fraud resistant as a passport. Likewise, newly naturalized U.S. citizens are unfairly inconvenienced by not being able to use their hard-earned certificates of naturalization in the I-9 process.
5. What are the consequences of accepting a document no longer on the list?
With the new Form I-9 formally in effect, employers (1) are legally barred from using prior versions of the form, and (2) are liable if they accept one of the five documents removed from list A. Allowing a new hire to go to work based on one of the “de-listed” documents will constitute a substantive I-9 violation.
6. How do I know if I’m using the correct, new Form I-9?
The new Form I-9 bears a revision date of June 5, 2007, in the lower right-hand corner of each page.
7. Nongovernment services have sent notices saying I can purchase I-9 forms from them. Should my company do that?
No. The new Form I-9 and the new Handbook for Employers are both available free of charge and can be printed directly from the USCIS Web site. The instructions from USCIS confirm that employers can make their own copies of Form I-9.
8. Why didn’t USCIS take this opportunity to make more comprehensive changes to the I-9 form and process?
The new Form I-9 is essentially a housekeeping matter. USCIS admits its objective in the release was quite modest—bringing the form into compliance with changes in the law from 11 years ago.
USCIS acknowledges it has plans to make more profound changes in the overall I-9 process—but further tinkering would have required formal rulemaking and broader changes to federal regulations. Rather than further delay the changes, USCIS decided to make modest updates now. USCIS has advised we should expect additional changes to Form I-9 in the future.
9. Can an employer require a Social Security number in the I-9 process?
The Handbook for Employers contains numerous reminders that providing a Social Security number (SSN) in section 1 of the I-9 is voluntary for all employees unless the employer participates in E-Verify, which requires an SSN. An employee must, of course, provide his or her SSN and original Social Security card if that document is being used in section 2 to confirm employment eligibility. But if the employee is presenting another acceptable document to prove employment eligibility—such as a U.S. passport under list A or a U.S. civil birth certificate under list C—the employer cannot obligate the employee to provide an SSN in section 1 as part of the I-9 process. Note: An employer will typically confirm the SSN or taxpayer ID number during the W-4/payroll process.
10. Does the updated Handbook for Employers include new information?
Yes. The new M-274 Handbook for Employers includes some badly needed, long-overdue clarifications, which many employers have welcomed. New features of the Handbook for Employers include the following.
- E-Verify. The Handbook for Employers explains exceptions to standard I-9 procedures for companies that use the USCIS E-Verify system (formerly known as the Basic Pilot/Employment Eligibility Verification Program), in addition to information about how companies can voluntarily enroll in E-Verify. Entities that use E-Verify must secure an SSN in the I-9 process, as that number is one of the mandated data fields in the E-Verify electronic verification process. In addition, the list of acceptable list B identity documents is shortened for E-Verify users. This system limits list B to documents that include a photograph, such as a state driver's license or government-issued identification card.
- Electronic Retention of I-9s. The Handbook for Employers has been updated to provide details on federal requirements for completing and storing I-9s electronically, including a list of the security features that must be implemented. These are important reminders for employers, as some converted to scanning I-9s in recent years without attention to the security requirements.
- Sample I-9s. Sample I-9 forms, filled out to illustrate certain rules, are included in the new Handbook for Employers. Examples include completion of the translation certification and completion of a Form I-9 for an employee under age 18.
- Office of Special Counsel. A better summary is provided on how the Equal Employment Opportunity Commission and the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) share jurisdiction for certain national origin discrimination claims. Part of the Department of Justice Civil Rights Division, OSC is charged with enforcing provisions of immigration laws that guard against discrimination based on citizenship status and national origin in the I-9 process. The Handbook for Employers also provides more details on procedures for filing charges of employment discrimination with these agencies.
- Penalties. Employers will find more details and updates about potential penalties for immigration law violations.
- More Answers to Common Questions. In updating the Handbook for Employers, USCIS expanded the Q&A section. Most of the information in this section is designed to explain how to implement the I-9 process correctly under the law (e.g., explaining that an employer can complete a Form I-9 before a new employee actually starts work). However, some of the new material clearly indicates government recognition that I-9 rules can be difficult to understand. For example, there is greater detail about when an employee can present a receipt for documents in lieu of actual documents to prove employment eligibility.
- Unique Immigration Classifications Addressed. Employers will find more explanation of how to meet I-9 documentation requirements for certain employees who indicate they are “aliens authorized to work” under different immigration classifications. There are, for example, helpful references to foreign nationals who have been granted (1) temporary protected status; (2) curricular practical training or optional practical training pursuant to F-1 foreign student visa status; (3) TN status under the North American Free Trade Agreement; (4) refugee or asylee status; and (5) J-1 exchange visitor visa status.
- Sample Identity and Employment Eligibility Documents. Employers will especially welcome the expanded and updated display and description of documents that are acceptable for identity and employment eligibility verification.
11. What went missing in the Handbook for Employers?
Despite getting a thorough revision, the Handbook for Employers will still frustrate some employers, especially those new to the I-9 process. Employers looking for a resource to help in distinguishing between genuine and fake documents will be greatly disappointed. In fact, samples of the “latest version” of the permanent resident card (Form I-551) and employment authorization card (From I-766) do not show the correct, current photo that should appear on those documents. Examples include photos of the document bearers with a side-view pose, which has been phased out by the government in recent years. Without adding any pages, the government could have presented sample documents with both the side-view pose and photo format that is now required—a straight fontal view (as used for passports).
Likewise, inclusion of correctly annotated I-94 cards with the special documents (Forms I-20 and DS-2019) that are issued to F-1 foreign students and J-1 exchange visitors would have been useful. Additional sample forms could have illustrated how to document some of the common and more complex I-9 scenarios. Expanding the explanation of how to properly complete I-9 forms for refugees and asylees would have been helpful, as well.
USCIS also failed to recognize that the I-94 card is the least understood document employers must contend with in the I-9 process. This is primarily the case because I-94 cards are annotated in many different ways to confirm many different types of immigration authorization. USCIS would have been wise to include a summary of immigration classifications with corresponding samples of work authorization documents, especially as they relate to the multitude of I-94 annotations. The Handbook for Employers does not adequately educate employers on the fact that many I-94 card annotations do not provide any evidence of employment authorization. Some I-94 annotations authorize employment, but are specific to only one employer. Others provide proof of employment eligibility with virtually any employer.
U.S. immigration authorities also missed an opportunity to address a number of areas of confusion, including the following.
- There is no sample document provided for conditional permanent residents.
- The sample foreign passport is insufficient, as it fails to illustrate any information on the issuing authority, validity date or different formats used by foreign countries in extending passport validity—the key data points that need to be documented on the Form I-9.
- Greater clarification on characteristics of valid documents might have been provided, a measure that could prevent legal immigrants from being denied employment. For example, the sample of the employment authorization card (Form I-766) shows the cardholder’s fingerprint. However, many employers would not be aware that the majority of valid I-766 cards are now issued without fingerprints.
- The new Handbook for Employers will keep employers guessing about the often-contradictory rules that apply to extensions or changes in an employee’s temporary work visa status. A few of those scenarios are addressed, but most are not. For example, the next generation of this publication would serve employers well by providing examples of how to complete section 3 reverifications based on employer filings on extension of non-immigrant visa status for foreign workers. Federal regulations provide H-1B, L-1 and O-1 workers with up to 240 days of legal status with work authorization while properly filed extension of status requests are pending with USCIS. The Handbook for Employers could contrast these scenarios, under which continued work authorization is permissible, with filings for work authorization renewal that do not provide proof of employment eligibility while the foreign worker awaits a decision.
- The Handbook for Employers also fails to “connect the dots” between the 1980s-era I-9 process and legal developments of the last 20 years. One example is the absence of any reference to H-1B or I-485 “portability,” two new-hire scenarios that are not adequately addressed. Immigration laws were amended several years ago to permit foreign workers to move from one employer to another in certain settings. This allows an H-1B professional worker to start working for a new H-1B employer when that company files an H-1B petition on the worker's behalf. The employment with the second company is fully authorized by that filing, even though it may be weeks or months before USCIS issues an approval notice in connection with that change in employment. Similarly, a foreign national who has had an I-485 adjustment of status application pending with USCIS for more than six months may be able to change jobs without the new employer having to file any application or immigration benefits petition on that worker's behalf. Since there is often confusion on how Form I-9 is to be completed in these “portability” scenarios, he government would do a great service to employers and foreign workers alike by explaining these rules.
Conclusion
The government is to be commended for clarifying more issues in the updated Handbook for Employers. It's unfortunate, however, that it took so many years for this expanded version to be released. Likewise, as the comments above illustrate, this is a resource that warranted greater input from Form I-9 users. More collaboration by USCIS with business groups and human resources professional associations would have resulted in a more comprehensive tool. But as it stands, employers certainly welcome the update and will benefit from the improvements.
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