Employers Must Use Revised Form I-9 for Employment Eligibility Verification for Employees Hired On or After April 3, 2009

June 2009

The U.S. Citizenship and Immigration Services (“USCIS”) issued a revised Form I-9 which employers must now use for employees hired on or after April 3, 2009. The revised Form I-9 reflects changes made to the list of acceptable documents for employment eligibility verification in accordance with the interim final rule published in the Federal Register on December 17, 2008. With the revised Form I-9, the new passport card is considered a “List A” document, and can now be used by employees to prove both identity and work authorization. The revised Form I-9 also specifies that expired documents are no longer acceptable.

The USCIS extended the effective date for the revised Form I-9 from February 2, 2009 to April 3, 2009 in order to receive more comments and to further review the interim rule. USCIS will consider these comments and respond to them in a subsequent final rulemaking on this subject. The revised Form I-9 has a revision date of 02/02/09, and an expiration date of 6/30/09. After June 30, 2009, it remains to be seen whether the USCIS will extend the expiration date for the Form I-9, or issue an updated form.

It is important to note that it is illegal for an employer to contract for the labor of an alien if the employer knows the alien is not authorized to work in the United States.

Retention of Employees’ Form I-9s:
An employer must retain its employees’ completed Form I-9s for 3 years after the date it hires an employee, or 1 year after the date employment is terminated, whichever is later. These forms can be kept in paper, microfilm, microfiche, or electronically. The employer should keep its employees’ Form I-9s in a common file separate from the employees’ personnel files. This practice will allow the forms to be easily accessible in case of an audit request by immigration or labor officials and prevent those officials from accessing employees’ personnel files.

Enforcement Actions and Additional Guidance:
It is very important that employers ensure that a Form I-9 is fully and correctly completed for each of its employees. It is equally important that employers examine the proper documentation permitted for a Form I-9 to verify the identity and employment authorization of its employees. The Immigration and Customs Enforcement (“ICE”) and the Department of Homeland Security have been increasingly aggressive in prosecuting federal criminal cases against employers who employ illegal aliens. For more information regarding ICE and DHS enforcement actions and what steps employers can take to avoid such actions, please see Craig Denney’s article titled “Staying cool in an ICE storm” at https://www.downeybrand.com/publications/articles/090323_ICEstorm.php . Employers must ensure that they use the revised Form I-9, with a revision date of 02/02/09. The revised Form I-9 can be found at http://www.uscis.gov/files/form/i-9.pdf. The USCIS also provides a Handbook for Employers (M-274, revised 4/3/09), which contains instructions for completing the revised Form I-9. The Handbook for Employers can be found at http://www.uscis.gov/files/nativedocuments/m-274.pdf.

Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.