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USCIS Issues Final Rule on I-9 Form and Discusses Public Comments

Today, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule that adopts, without modification, the changes made to the Form I-9 process by the Department of Homeland Security over 2 years ago. Yes folks, sometimes it does take quite a bit of time before rules become “really final,” at least in the eyes of government regulators.  Many employers will recall the significant changes which went into effect in April 2009, including the rule that employers can no longer accept expired documents as proof of identity or work authorization when completing the I-9 form. Although today’s news is not exactly earth shattering, the rule itself does provide an interesting look at how the “public” views the Form I-9 process and the DHS reasoning behind the April 2009 changes. As previously discussed, many experts consider the I-9 form to be in need of a major overhaul, and these comments followed a similar pattern. Hopefully, the USCIS will continue to reach out to the public for comments and design a new form (and process) that provides some much needed clarity. In the meantime, here is a quick review of the final rule and public comments. Background On December 17, 2008, DHS published an interim rule to improve the integrity of the Form I-9 process. Although originally slated to go into effect on February 2, 2009, the rule was delayed (for Obama Administration review) and finally went into effect on April 3, 2009. The changes included the following:

  • Prohibiting employers from accepting expired documents
  • Removing Form I-688, “Temporary Resident Card,” and Forms I-688A and I-688B, “Employment Authorization Cards,” from the Lists of Acceptable Documents because USCIS no longer issues these documents and any such documents in possession of an employee would now have expired;
  • Adding to the List of Acceptable Documents on List A of Form I-9: (1) the new U.S. passport card and (2) the temporary Form I-551, “Permanent Resident Card,” with a printed notation on a machine-readable immigrant visa;
  • Adding documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) to List A to more accurately reflect their status under the Compacts of Free Association.
  • Amending the Form I-9 (Rev. 02/02/2009) which clarified changes, such as providing a separate box for noncitizen nationals to clearly delineate U.S. citizens from noncitizen nationals, and making minor format changes that make the form “easier to use.”

The USCIS later posted a newer version of the form (Rev. 08/07/2009) which had no substantive changes, other than the revision and expiration dates. As of this writing, employers are free to use either the 02/02/2009 or 08/07/2009 versions. Public Comments and DHS Replies The USCIS received approximately 75 public comments in response to the rule from a wide variety of individuals and organizations, including refugee and immigrant services advocacy organizations and public policy and advocacy groups. While many commenters supported the improvements to the I-9 process, several others expressed a need for more flexibility, particularly in regards to foreign national employees. Here is a brief summary of the more interesting points of contention.Unexpired Documents The DHS explained that unexpired documents are more likely to contain up-to-date security features that make them less vulnerable to counterfeiting and fraud. Because expired documents may lack security features or may have outdated security features, these documents can more easily be counterfeited. In addition, the DHS argued that precluding employers from accepting expired documents alleviates confusion when determining whether documents are valid for Form I-9 and helps to ensure that the documents relate to the person presenting them. However, many employers are unaware that expired documents can be accepted in certain circumstances – e.g., F-1 students with a cap-gap extension (see page 16 of the M-274 Handbook for Employers). Therefore, confusion does still exist. In addition, many commenters noted the high cost of obtaining replacement documents and suggested that refugees and asylees should be excused from this requirement or be allowed to present expired documents for a limited time because these individuals are authorized for employment incident to their status. Nevertheless, DHS declined to change the rule, noting that asylees and refugees can present other documents (driver’s license and SS card) to satisfy I-9 requirements. The Entire Form I-9 Process and List of Acceptable Documents Many commenters reiterated the need for comprehensive immigration reform and suggested improvements to the Form I-9 process such as: biometrics; providing the public a USCIS version of an electronic Form I-9; and detailed changes to the form. Other commenters suggested reducing the number of acceptable document and suggested changes to the acceptability of specific document types such as: school IDs; U.S. Passports; State-issued drivers’ licenses including enhanced drivers’ licenses; voter registration cards; Native American tribal documents; and the Certificates of Citizenship and Naturalization. At least two commenters mentioned the need for guidance on how to correct I-9s. The DHS dismissed most of these comments outright as being outside of the scope of the interim rule or requiring statutory changes (which isn’t likely to happen anytime soon). The DHS did note, however, that they will continually review and analyze the employment eligibility verification process and consider changes as appropriate. Regarding the need for an electronic I-9 form, the DHS cautioned employers that the PDF I-9 form on the USCIS Web site can be completed online but cannot be signed and stored electronically (it doesn’t have audit trails, security features, etc.)  Fortunately, employers can opt to use an electronic I-9 system, such as Guardian by LawLogix, as long as the system strictly adheres to the final regulations on storing and generating electronic I-9 forms. Outreach In reading the public comments, it becomes very clear that there is still a lot of confusion regarding the I-9 process – particularly in regards to receipts, reverifications, and the proper way to make corrections. As we mentioned earlier, the USCIS is due to release a new website soon (dubbed “I-9 Central”) which should hopefully answer at least some of these questions. In the meantime, the USCIS has also published a new FAQ regarding the final rule, which can be viewed online here. __________________________________________________ John Fay is a former business immigration attorney with a unique background in designing and advising on immigration and I-9 practice tools.  In his current role, John serves as Vice President of Products and Services and General Counsel at LawLogix.

Human Resources Today