Boardman & Clark LLP—Banking Group

New Employment Verification Form I-9 Changes List of Acceptable Verification Documents

As you may know, federal law requires employers to verify the identity and employment authorization of their employees using Form I-9, Employment Eligibility Verification. As of April 3, 2009, employers are required to use a new version of this form, which conforms to new regulations from the Department of Homeland Security (DHS). Links to the new Form I-9 can be found on the U.S. Citizenship and Immigration Services (USCIS) Web site, where the form is available in both English and Spanish. This newsletter provides an overview of the changes to Form I-9 that are most significant for employers.

Changes to Form I-9

The updated Form I-9 modifies the list of acceptable documents that may be used to verify the identity and employment authorization of employees. The new form maintains the same basic structure of verification (i.e., verification through a List A document or documents from Lists B and C), but it changes the types of acceptable documents. The update also makes several technical and cosmetic changes from the previous form.

Changes to the List of Acceptable Documents

The most significant change to Form I-9 is a new rule that expired documents are no longer acceptable to verify identity or employment authorization. This change is evidenced on the new Form I-9 by the removal of references to "expired" and "unexpired" documents, which reflects the new rule that all documents must be unexpired. Under this new rule, documents that have no expiration date (e.g., a Social Security card) are treated as unexpired. In addition to the new policy of accepting only unexpired documents, the update of Form I-9 makes the following changes to the list of acceptable documents under List A:

• It allows citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) to satisfy both the identity and authorization requirements of Form I-9 with an FSM or RMI passport coupled with Form I-94 or Form I-94A. (See List A, Box 6.)
• It updates the reference to temporary I-551 stamps to reflect the two forms in which temporary I-551s are issued. Temporary I-551s are currently issued either as a temporary stamp in a foreign passport or as a temporary I-551 notation printed on a machine-readable immigrant visa. The former Form I-9, however, only listed a temporary stamp on a foreign passport as an acceptable List A document. The new Form I-9 adds a temporary I-551 printed on a machine-readable immigrant visa as an acceptable List A document. (See List A, Box 3.)
• It removes Forms I-688, I-688A, and I-688B as acceptable List A documents. This change was made because these documents are no longer issued, and any of these documents that were previously issued have now expired. (See List A, Box 4.)
• It adds a reference to Form I-94A in each place that references Form I-94. This change was made because form I-94A is simply a computer-generated version of Form I-94 (i.e., these forms may be used interchangeably).

Finally, a related change that was made before the update of Form I-9 is that the new U.S. Passport Card is an acceptable List A document. It is not listed explicitly on the new Form I-9, but it satisfies the List A requirement because it is a valid passport.

Technical Changes and Cosmetic Changes

In addition to the changes regarding the types of documents that may be used to verify the identity and employment authorization of employees, the updated Form I-9 reflects several technical and cosmetic changes. These changes do not substantively alter the process that employers must follow in completing Form I-9. The instructions for completing the new Form I-9 do, however, contain several helpful updates, including a clarification of when employers need to reverify certain employees.