Brian S. Weiss Immigration Law Blog on Lawyers.com

As many employers are aware, navigating the complicated U.S. immigration laws can be anxiety provoking. One major concern for employers are situations where a foreign national provides false documentation that results in unauthorized employment by the alien and potential civil and criminal sanctions for the employer. Over the last several years, the U.S. Citizenship and Immigration Services (USCIS) has revised the Employment Eligibility Verification Form (I-9) required to be completed by employers for each employee hired in the U.S. These revisions have reduced the number of acceptable documents for I-9 compliance as USCIS attempts to more accurately verify the identity and work eligibility of all U.S. employees.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) reduced the number of documents that employers may accept to confirm employment eligibility. Although an interim final rule was published in the Federal Register in 1997, the Form I-9 was not initially amended to reflect these changes. The recent revisions to Form I-9 over the last several years have eliminated certain documents from List A of the List of Acceptable Documents. These documents were eliminated, in part, because they failed to provide sufficient protection to deter counterfeiting, tampering and fraud and consist of the following:

• Certificate of U.S. Citizenship (Form N-560 or N-561);
• Certificate of Naturalization (Form N-550 or N-570);
• Alien Registration Receipt Card (Form I-151);
• Unexpired Reentry Permit (Form I-327);
• Unexpired Refugee Travel Document (Form I-571);
• Temporary Resident Card (Form I-688);
• Employment Authorization Card (Form I-688A); and
• Employment Authorization Card (Form I-688B).

Please note that List A documents establish both the identity and employment eligibility of the employee. The current List A now consists of:

• A U.S. Passport or U.S. Passport Card;
• A Permanent Resident Card (Form I-551);
• A foreign passport with temporary I-551 stamp or a temporary I-551; printed notation on a machine-readable immigrant visa (MRIV);
• An Employment Authorization Document that contains a photograph (Form I-766);
• A foreign passport with an unexpired Arrival-Departure Record (Form I-94) showing nonimmigrant status and authorization to work for a specific employer; and
• Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

Further recent amendments to the Form I-9 include changes to the instructions for Section 1 of the form. One of these amendments provide that an employee is not obligated to provide an SSN number unless he/she is employed by an employer who participates in the USCIS Electronic Eligibility Verification Program (E-Verify). Information is also now included in the Form I-9 instructions regarding electronically signing and retaining I-9 forms. In addition, the I-9 form itself was revised to allow an employee to now attest to being either a citizen or non-citizen national of the United States and USCIS now requires that all documents presented during the verification process be unexpired so that an employee can properly portray a valid status in the U.S.

The I-9 Form and the “Handbook for Employers, Instructions for completing Form I-9 (M-274)” are available online at www.uscis.gov. This Handbook may also be found at the Garganigo, Goldsmith & Weiss website (www.ggw.com) under the Resource Links.