USCIS Announces December 26, 2007 as Effective Date for New I-9 Form
U.S. Citizenship and Immigration Service (USCIS) announced on November 26, 2007 in the Federal Register that all employers must transition to the revised I-9 Form no later than December 26, 2007. Accordingly, effective December 26, 2007, employers who fail to use the revised form will be subject to applicable penalties. The revised Form I-9, Employment Eligibility Verification, and M-274, Handbook for Employers, Instructions for Completing the Form I-9 were released on November 7, 2007.

Under the Immigration Reform and Control Act of 1986 (IRCA), all U.S. employers are required to certify on Form I-9 that all employees (citizen and non-citizen) hired after November 6, 1986, are eligible to work in the U.S. and that their identities match the information on their employment authorization documents. The revision seeks to achieve full compliance with the document reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which reduced the number of documents employers may accept from newly hired employees during the I-9 employment eligibility verification process. In 1997, the legacy Immigration and Naturalization Service (INS) published an interim final rule eliminating some of the documents IIRIRA identified for removal. However, Form I-9 was not updated to reflect the revised List of Acceptable Documents at that time.

The I-9 Employment Eligibility Verification rule remains the same. The most significant revision to the new Form I-9 is the elimination of five documents from List A of the List of Acceptable Documents, including:

One document was added to List A of the List of Acceptable Documents:

• Unexpired Employment Authorization Document (I-766)

As a reminder, all employers in the U.S. must complete a Form I-9 for each employee hired in the United States. The statute prohibits discrimination against an employee because of national origin or citizenship in hiring, recruitment, referral or discharge. Employers with four or more employees will be subject to unfair immigration related (anti-discrimination) employment practices.

Practice Pointers:

• The revised Form I-9 will become effective on December 26, 2007 for all new hires or reverification after the effective date. The rule is not retroactive. Employers do not need to complete new forms for existing employees for whom an I-9 has been properly completed.
• The employee is not required to provide the Social Security Number in Section 1 of Form I-9, unless the employer participates in E-Verify.
• When re-verifying employees, employers must use the new Form I-9 along with its updated list of acceptable documents. Updating Section 3 on the old/existing Form I-9 is not an option.
• All previous versions of Form I-9, in English or Spanish, are no longer valid after December 26, 2007.
• The Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete the English version and kept it in the employer's records. Employees may also use or ask for a translator/preparer to assist them in completing the form.

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About the Author

Minnie Fu is a Partner in the Immigration Group of the Washington, DC regional office of Jackson Lewis LLP. Her practice focuses on assisting employers in obtaining employment-related visas and advising employers on compliance with U.S. immigration laws and regulations.  

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