EMPLOYMENT LAW

Client Alert: Form I-9 New Developments — Immediate Attention Required

July 1 , 2005

By Laurel A. Van Buskirk*

Is Your Company Using The Correct Form I-9?

In early June, the U.S. Citizenship and Immigration Services (USCIS) issued a new Form I-9 with instructions that all employers would be required to use the newly-released form no later than January 1, 2006. However, since that form’s release, the USCIS has issued additional information that is critical for immigration law compliance.

In a subsequent press release, dated June 21, 2005, the USCIS announced that there will be further substantive changes to the Form I-9 in the future. While the USCIS anticipates issuing another revised version of the Form I-9, there was no anticipated date for issuance included in the press release.

In the meantime, the USCIS has instructed employers that they may use a Form I-9 that has one of the following edition dates: “(Rev. 5/31/05)Y," “(Rev. 05/31/05)N,” or “(Rev. 11/21/91)N”. Employers should make sure they are using only Form I-9’s with one of these three edition dates in the lower right corner. Download the 5/31/05 version of the Form I-9.

Employers Beware: Certain List A Documents No Longer Acceptable

In addition to its June 21st press release, the USCIS also recently updated the “Special Instructions” to its Form I-9, informing employers that certain documents listed as “List A” documents (establishing both Identity and employment eligibility) under the List of Acceptable Documents are not acceptable to establish identity and employment eligibility. Even though these documents are no longer acceptable, they are still listed on all versions of the Form I-9, including the form issued in May 2005. Thus, employers must take the necessary steps to ensure that only permissible documentation is accepted.

Current versions of the Form I-9 list five documents under “List A” that cannot be accepted by the employer going forward. These include the following:

• # 5: Form I-151 (Although Form I-551 remains an acceptable “List A” document #5.)
• # 2: Certificate of U.S. Citizenship
• # 3: Certificate of Naturalization
• # 8: Unexpired Reentry Permit; and
• # 9: Unexpired Refugee Travel Document

The USCIS also clarified that while Form I-766 (Unexpired Employment Authorization Document issued by DHS that contains a photograph) is not listed as a “List A” document on the 5/31/05 version of the Form I-9, it is still an acceptable List A document.

The June 21st USCIS press release and the list of documents which may not be accepted by employers in discharging their Form I-9 obligations are available online.

Employers should immediately ensure that they are using the permitted versions of the Form I-9 and that staff responsible for documentation verification are notified of the changes to the acceptable “List A” documents. They should also be on the look out for more Form I-9 changes in the future.

*Laurel Van Buskirk is admitted in New Hampshire and Maine.

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