Recent Changes In Immigration Law And Procedure For The New Year

Department Of Homeland Security Interim Rule Revises

List Of Acceptable Documents For Employment Eligibility

Verification (Form I-9) Process

The Department of Homeland Security (DHS), US Citizenship and

Immigration Services (USCIS), issued an interim rule revising the list of documents

acceptable for the employment eligibility verification

process. The interim rule, published on December 17, 2008,

supersedes a proposed rule issued by the former Immigration and

Naturalization Service (INS) in 1998, which reduced the list of

acceptable documents but was never published as a final rule. The

rule is effective February 2, 2009.

The most significant change made by the rule is the requirement

that all documents presented during the employment eligibility

verification process must be unexpired. Currently, US passports and

all Form I-9 List B documents (documents that

establish only identity) are acceptable, even if they are expired.

The rule now requires unexpired documents for Form I-9 to ensure

that acceptable documents reliably establish identity and

employment authorization. DHS reasons that the new requirement is

necessary because expired documents often fall prey to

counterfeiters and forgers.

The rule makes additional changes to List A

(documents that establish both identity and employment

authorization) on Form I-9. Two documents have been added to List

A: (1) a temporary I-551 printed notation on a machine-readable

immigrant visa in addition to a foreign passport with a temporary

I-551 stamp and (2) a passport from the Federated States of

Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with

a valid Form I-94 or Form I-94A, indicating non-immigrant admission

under the Compact of Free Association between the United States and

the FSM and RMI.

The rule also eliminates three documents from List A: (1) Form

I-688, Temporary Resident Card, (2) Form I-688A, Employment

Authorization Card and (3) Form I-688B, Employment Authorization

Card. USCIS no longer issues these documents, and all previously

issued documents have expired.

Finally, the rule revises Form I-9 itself including changes to

the employee attestation section and additional

instructions that clarify when employers need to reverify certain

employees. Specifically, the employee attestation section is

changed by separating the categories of "citizen of the United

States" and "noncitizen national of the United

States" to address difficulties the government has encountered

in...