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Notice

Introduction of the Amended Form I-9 and the New Handbook for Employers

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AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice.

SUMMARY:

U.S. Citizenship and Immigration Services is issuing this Notice to introduce the newly amended Form I-9, “Employment Eligibility Verification.” Employers are required to use the Form I-9 to verify the identity and employment authorization of newly hired employees. The amended Form I-9 contains an updated list of acceptable identity and employment authorization documents that reflect the current regulations. As of November 7, 2007, the amended Form I-9 is the only valid version of the form. The Department of Homeland Security will not seek penalties against an employer for using a previous version of the Form I-9 on or before December 26, 2007.

DATES:

This Notice is effective November 26, 2007.

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FOR FURTHER INFORMATION CONTACT:

Gregory Francis, Department of Homeland Security, U.S. Citizenship and Immigration Services, Verification Division, 470-490 L'Enfant Plaza East, SW., Suite 8206, Washington, DC 20024; E-mail: employer.pilots@dhs.gov; Telephone: 1-888-464-4218.

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SUPPLEMENTARY INFORMATION:

I. Background

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110 Stat. 3009 (Sept. 30, 1996), amended the Immigration and Nationality Act (INA) to reduce the number of documents that an employer may accept from newly hired employees when verifying their identity and employment eligibility (i.e., authorization) as required by law. IIRIRA section 412(a) (amending INA sec. 274A(b)(1), 8 U.S.C. 1324a(b)(1)). On September 30, 1997, the Immigration and Naturalization Service (INS) published an interim rule, “Interim Designation of Acceptable Documents for Employment Verification,” implementing those amendments. See 62 FR 51001. However, INS did not concurrently amend the Form I-9, “Employment Eligibility Verification,” that employers must use to conduct the required verification to reflect the changes made by the interim rule. As a result, the Form I-9 (Rev. 05-31-05) contained an outdated list of acceptable documents.

In the supplementary information accompanying the 1997 interim rule, the INS stated that it planned to issue a new Form I-9 in the context of a broader final rulemaking. While U.S. Citizenship and Immigration Services (USCIS), which now maintains the Form I-9, still intends to pursue a broader rulemaking, given the long passage of time since the interim rule, allowing an outdated Form I-9 to remain in use has become untenable. Therefore, USCIS has amended the Form I-9 document list to be consistent with the regulations. On November 7, 2007, USCIS posted the amended Form I-9 on its Web site, at http://www.uscis.gov. The amended Form I-9 has a revision date of June 5, 2007, which is printed as “(Rev. 06/05/07)N” on the lower right corner of the form. As of November 7, 2007, this is the only valid version of the form.

This Notice introduces the newly amended Form I-9 (Rev. 06/05/07)N and instructs employers on its use.

II. Changes to Form I-9

A. List A—Revised

Because the 1997 interim rule was limited to Form I-9 List A documents, the amended Form I-9 reflects changes to the documents listed under List A only. List A documents are those that evidence both an individual's identity and employment eligibility. The amended Form I-9 no longer lists the following as List A documents: (1) The Certificate of United States Citizenship (Form N-560 or N-561); (2) the Certificate of Naturalization (Form N-550 or N-570); (3) the Form I-151, a long out-of-date version of the Alien Registration Receipt Card (“green card”); (4) the Unexpired Reentry Permit (Form I-327); and (5) the Unexpired Refugee Travel Document (Form 1-571).

The amended Form I-9 retains four types of acceptable List A documents: (1) The U.S. Passport (unexpired or expired); (2) the Permanent Resident Card or Alien Registration Receipt Card (Form I-551); (3) an unexpired foreign passport with a temporary I-551 stamp; and (4) an unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, I-688B). All of these acceptable List A documents were carried over from the previous Form I-9, with the exception of the Form I-766, which is a new addition to List A. The amended Form I-9 also modifies one acceptable List A document. The List A document entitled, “unexpired foreign passport with an attached Form I-94 indicating unexpired employment authorization,” has been replaced by “an unexpired foreign passport with an unexpired Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, if that status authorizes the alien to work for the employer.”

USCIS also has amended the order and organization of List A to track the regulations more directly. For example, the various Employment Authorization Documents are listed together as one category, and the unexpired foreign passport with temporary I-551 stamp is a separate entry from the unexpired passport with Form I-94 indicating an employer-specific work-authorized nonimmigrant status.

This updating of List A on the Form I-9 should help streamline the hiring process by providing employers with a better means of conforming their document acceptance practices with the requirements of the law. List A on the newly amended Form I-9 has been the regulatory List A since 1997, and, therefore, employers should not have been accepting documents not included in the regulatory list.

Given the discrepancy between the Form I-9 and the regulations, however, the INS and, subsequently, the Department of Homeland Security (DHS) withheld enforcement of civil money penalties for violations associated with the changes made by the 1997 interim rule as a temporary transitional measure. 62 FR at 51002. With an amended Form I-9 now available that includes the correct List A, that policy is no longer necessary. Therefore, DHS has determined that the non-enforcement policy will cease as of December 26, 2007. Start Printed Page 65975

B. Other Changes

The amended Form I-9 now instructs employees that providing their Social Security number in Section 1 of the form is voluntary, pursuant to section 7 of the Privacy Act (5 U.S.C. 552a note). However, employees must provide their Social Security number in section 1 of the form if their employer participates in E-Verify (the employment eligibility verification program formerly known as Basic Pilot or EEV), as provided by section 403(a)(1)(A) of IIRIRA. Moreover, for employees who present their Social Security account number card to their employer as evidence that they are authorized to work in the United States, the employer must record the Social Security Account number in section 2 of the Form I-9.

The amended Form I-9 also includes various nonsubstantive changes to the organization and content of the form instructions to be more consistent with standard USCIS branding practices, such as including a clarification that there is no filing fee associated with the Form I-9.

III. Use of the Amended Form I-9

As of November 7, 2007, the Form I-9 (Rev. 06/05/07)N is the only version of the form that is valid for use. DHS recognizes that employers should be afforded a period of time to transition to the amended Form I-9. Therefore, DHS will not seek penalties against an employer for using a previous version of the Form I-9 on or before December 26, 2007. After December 26, 2007, employers who fail to use Form I-9 (Rev. 06/05/07)N may be subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a, as enforced by U.S. Immigration and Customs Enforcement (ICE).

Note that employers do not need to complete the amended Form I-9 for current employees for whom there is already a properly completed Form I-9 on file. Indeed, unnecessary verification may violate the INA's anti-discrimination provision, section 274B of the INA, 8 U.S.C. 1324b, which is enforced by the U.S. Department of Justice's Office of Special Counsel for Immigration Related Unfair Employment Practices. However, employers must use Form I-9 (Rev. 06/05/07)N for any reverification of employment authorization conducted on or after December 26, 2007. Reverification is required when the Form I-9 indicates that the employee's work authorization will expire. To reverify, employers must examine acceptable Form I-9 documents evidencing that the employee remains authorized to work. See 8 CFR 274a.2(b)(1)(vii).

IV. Obtaining Forms I-9 (Rev. 06/05/07)N

Employers may access the amended Form I-9 (Rev. 06/05/07)N online at http://www.uscis.gov. In addition, a newly revised “Handbook for Employers, Instructions for Completing the Form I-9, (M-274)” is available online at http://www.uscis.gov. Because of its length, the revised M-274 will not be reprinted in the Federal Register. To order USCIS forms, call our toll-free number at 1-800-870-3676. The public can get USCIS forms and information on immigration laws, regulations and procedures by telephoning our National Customer Service Center at 1-800-375-5283.

A Spanish-language version of the amended Form I-9 is available at http://www.uscis.gov for use in Puerto Rico only. The Spanish-language Form I-9 (Rev. 06/05/07)N is valid as of November 7, 2007. This updated Spanish-language version of the Form I-9 supersedes all previous versions. Employers in Puerto Rico who continue to use previous editions of the Form I-9 in English or Spanish after December 26, 2007 may be subject to fines and penalties.

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Dated: November 16, 2007.

Emilio T. Gonzalez,

Director, U.S. Citizenship and Immigration Services.

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Note:

The Form I-9 is provided as an attachment to this notice.

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[FR Doc. 07-5790 Filed 11-20-07; 12:29 pm]

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