Proposed Revisions to the Form I-9
During the next six months, the Department of Homeland Security (DHS) seeks, among other things, to amend regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers when completing the Form I-9, Employment Eligibility Verification, according to the agency’s semiannual regulatory agenda published on November 24 in the Federal Register (73 FR 71377) and the Unified Agenda for Fall 2008 posted at: http://edocket.access.gpo.gov/ua081124/pdf/ua081101.pdf EXE: http://edocket.access.gpo.gov/ua081124/pdf/ua081101.pdf. DHS issued its last semiannual regulatory agenda on December 10, 2007.
Background. Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), all employers are required to verify the identity and employment authorization of each individual they hire for employment in the United States, regardless of that individual’s citizenship. As part of the verification process, employers and employees must complete the Form I-9, with employers retaining the form for a statutorily-established period of time (i.e., three years after the employee’s date of hire or one year after the date that employment is terminated) and making the form available for inspection by certain government officials. The documents designated as acceptable for the Form I-9 are divided among three lists: List A —documents that establish both identity and employment authorization; List B —documents that establish only identity; and List C —documents that establish only employment authorization. Many work authorization documents must be renewed on or before their expiration date, requiring the Form I-9 to be updated. This process is called re-verification. DHS recommends using a “tickler” system to keep track of employees with documents of limited-duration work authorization.
Employment verification. The proposed rule (RIN 1615-AB72) requests input from the public on what alternatives, if any, DHS should consider to improve the integrity of the employment eligibility process. The rule, which was sent to the Office of Management and Budget (OMB) for regulatory review on October 17, also requests that any alternatives suggested should include the costs and benefits of those alternatives, as well as the effect on small entities. Any changes proposed in the rule are not required by statute or court order. Separately, DHS sent an interim final rule (RIN 1615-AB69) to OMB for review on September 19 amending its regulations to change the list of identity and employment authorization documents by requiring that acceptable documents be unexpired and eliminating several identity (List B) and employment authorization (List C) documents. A copy of the amended Form I-9 reflecting these changes will be published as an attachment to this rule. According to DHS, the purpose of the rule is to improve the integrity of the employment eligibility verification process by simplifying the list of acceptable documents for ease of use by employers, ensuring that the list contains secure and fraud-resistant documents and adding safeguards to the verification process.
This is not the first time DHS has sought to make revisions to the Form I-9. USCIS last substantively revised the form in November 2007. As part of that revision, USCIS updated the list of acceptable identity and employment authorization documents to comply with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which reduced the number of documents employers may accept from newly hired employees during the employment eligibility verification process. The most significant change was the elimination of five documents from List A of the List of Acceptable Documents. Those documents were: (1) Certificate of US Citizenship (Form N-560 or N-570); (2) Certificate of Naturalization (Form N-550 or N-570); (3) Alien Registration Receipt Card (Form I-151); (4) the unexpired Reentry Permit (Form I-327); and (5) the unexpired Refugee Travel Document (Form I-571). The forms were removed because they lacked features to help deter counterfeiting, tampering, and fraud. In addition, the most recent version of the Employment Authorization Document (Form I-766) was added to List A. Instructions in Section 1 of the form were also revised to indicate that employees are not obliged to provide their Social Security Numbers, unless they are employed by an employer who participates in E-Verify.
Most recently, DHS issued a new expiration date for the Form I-9. The June 5, 2007 version of the form, which was set to expire on June 30, 2008, has been extended with a new expiration date of June 30, 2009. Other than the revision date, there are no substantive differences to the form itself. Employers should use the June 5, 2007 version of Form I-9 with the June 30, 2009 expiration date. The form is available at http://www.uscis.gov/i-9 EXE: http://www.uscis.gov/i-9.
H2-A and H2-B visas. DHS is also amending the regulations affecting temporary and seasonal agricultural workers within the H-2A nonimmigrant category and their US employers. The final rule (RIN 1615-AB65), which is under OMB review, relaxes the current limitations on the ability of US employers to petition unnamed agricultural workers to come to the US and makes related changes to the evidentiary requirements for such petitions. In addition, the rule revises the current limitations on agricultural workers’ length of stay, including: (1) redefining “temporary employment;” (2) lengthening the amount of time an agricultural worker may remain in the United States after their H-2A nonimmigrant status has expired; and (3) shortening the time period that an agricultural worker whose H-2A nonimmigrant status has expired must wait before he or she is eligible to obtain H-2A nonimmigrant status again. Finally, the rule provides temporary employment authorization to agricultural workers seeking an extension of their H-2A nonimmigrant status through a different US employer.
DHS is also amending its regulations affecting temporary nonagricultural workers within the H-2B nonimmigrant category and their US employers. The changes are designed to improve the efficiency and effectiveness of the H-2B nonimmigrant classification. The final rule (RIN 1615-AB67), which is also under OMB review, relaxes the current limitations on the ability of US employers to petition unnamed nonagricultural workers to come to the US. In addition, the rule creates a process that will allow for issuance of a partial approval notice in the event that a security check generates adverse information on one beneficiary who is part of a multiple beneficiary petition. Finally, the rule provides for employer notification to USCIS within 30 days of the date that the employee leaves employment or is terminated. These proposals will increase the efficiency of the program by eliminating certain regulatory barriers.
Reprinted with permission. © CCH
(Submitted Nov. 26, 2008)
<p>Proposed Revisions to the Form I 9 During the next six months, the Department of Homeland Security (DHS) seeks, among other things, to amend regulations governing the types of acceptable identity and employment authorization documents that employees may present to</p>