Clearly, immigration policy and the legal status of foreign workers in the United States is one of the hot-button issues in next year’s presidential election. For employers, however, the renewed emphasis on verifying employee eligibility will have a significant impact next week. Effective December 26, 2007, all employers (and that includes you) are required to use the revised Employment Eligibility Verification form—Form I-9—when hiring new employees; failure to do so can result in significant problems, including monetary penalties.

The revised Form I-9 was introduced on November 7, 2007, by the United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security. Following a thirty-day transition period, all employers must begin using the revised Form I-9 no later than December 26, 2007.

The purpose of the Form I-9 is to document that a newly hired employee (whether a citizen or non-citizen) is authorized to work in the United States. The Form I-9 process requires employers to collect information from all new employees to verify such authorization. Authority for collecting this information comes from the Immigration Reform and Control Act of 1986 (IRCA), which makes it unlawful to hire, or continue to employ, an individual whom the employer knows is not authorized to work in the United States.

Since the enactment of the IRCA in 1986, employers have been required to complete a Form I-9 for all employees. The Form I-9 process remained basically unchanged until 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act reduced the number of documents that an employer may accept from a newly hired employee to establish employment authorization.

The express purpose of limiting which documents are acceptable was to weed out those that were most susceptible to counterfeiting, tampering, and fraud. However, despite the authorization to revise over 10 years ago, the Form I-9 was never updated to reflect the mandated changes—until now.

The revised Form I-9 includes a new List of Acceptable Documents—those that may be presented by an employee and accepted by an employer during the employment eligibility determination process. Acceptable documents fall into three categories:

• documents that establish identity and employment eligibility (List A);
• documents that establish identity (List B); and
• documents that establish employment eligibility (List C).

To establish identity and employment eligibility, an employee may present either one original document from List A, or a combination of original documents from Lists B and C.

The revised Form I-9 does not include any changes to Lists B or C; the changes involve only List A. The following five documents have been deleted from List A, meaning that they will no longer be accepted as valid documentation of employment eligibility:

1. Certificate of U.S. Citizenship (Form N-560 or N-561)
2. Certificate of Naturalization (Form N-550 or N-570)
3. Alien Registration Receipt Card (I-151)
4. Unexpired Reentry Permit (Form I-327)
5. Unexpired Refugee Travel Document (Form I-571)

Each of these forms is no longer considered an acceptable document and, accordingly, can no longer be used when completing the Form I-9. However, another form, the Unexpired Employment Authorization Document (I-766) has been added to List A and thus may now be used to verify identity and eligibility when completing Form I-9.

One other minor change involves the instructions to Section 1 of Form I-9, which now indicates that the employee is not obligated to provide his or her social security number unless he or she is employed by an employer who participates in the USCIS Electronic Employment Eligibility Verification Program (E-Verify). Operated by the Department of Homeland Security, E-Verify is an Internet-based system that allows employers to electronically verify the employment eligibility of newly hired workers. Thus, employers choosing to use E-Verify (the program is free and voluntary) to establish employment eligibility will ask their employees to provide social security numbers.

Finally, the format, font, organization, and grammar of the text have also been revised to make Form I-9 more readable and user-friendly. As required by the Paperwork Reduction Act, the form now states that the revisions have reduced the average completion time for Form I-9 from 15 to 12 minutes.

Despite the revisions to Form I-9, there are some aspects of the procedure that have not changed, including the following:

• Employers must still examine evidence of identity and employment eligibility (using acceptable documents only) within three business days of the date employment begins.
• Employers must retain completed Form I-9’s for three years after the date of hire or one year after the date employment ends, whichever is later.
• Employers must keep the completed Form I-9’s and must not file them with the USCIS.
• Completed Form I-9’s must, upon request, be made available for inspection by officials of the U.S. Immigration and Customs Enforcement, the Department of Labor, and the Office of Special Counsel for Immigration Related Unfair Employment Practices.
• Employers cannot specify which document(s) they will accept from an employee.
• Employers cannot discriminate against employees during the Form I-9 process.

Although the revisions to Form I-9 might be considered more cosmetic than substantive, the new wrinkles may still be a trap for unwary or careless employers. However, by using the correct version of Form I-9 and following the required procedure, conscientious employers can avoid the legal troubles and financial costs associated with hiring those ineligible for work in the United States.