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The Immigration and Naturalization Service ("INS") recently proposed changes to the employment eligibility verification process and the corresponding Form I-9 to make compliance easier. Citing the proliferation of counterfeit documents and the need to simplify and clarify verification requirements, the INS issued regulations that would reduce the number of eligible documents a new employee can present to verify identity and eligibility to work in the U.S. All employers are required by law to complete the Form I-9 verifying a new hire’s employment authorization within three days of employment. Why New Regulations Are Needed The INS issued its proposed regulations to comply with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") which eliminated many of the 29 documents currently used in the employment eligibility verification process to complete the Form I-9. The IIRIRA required the INS to publish new regulations to reflect the shortened document list by September 30, 1997. The INS failed to comply and instead asked for an extension to allow it to review the current regulations and evaluate what other documents would comply with the IIRIRA’s requirements. This extension was granted until March 30, 1998. The INS also issued an interim rule on September 30, 1997, that eliminated three documents used to establish both identity and eligibility and that allows employers to continue using the current Form I-9, dated 11/21/91, without penalty. The documents eliminated include certificates of U.S. citizenship, certificates of naturalization, and foreign passports without additional documentation. Until the INS finalizes the proposed rule, the interim regulation is still in effect. The INS also has indicated that it will not penalize employers if they accept documents from the current Form I-9. On February 2, 1998, the INS issued its proposed changes to the verification requirements and asked for comments for sixty days. Following the comment period, the INS will consider submitted comments, make revisions as necessary, and publish a final rule and revised Form I-9. The Proposed Changes Under the proposed rule, only the following documents will be acceptable for both establishing identity and verifying employment eligibility ("List A" documents in the Form I-9): U.S. passports; permanent resident cards or alien registration receipt cards; temporary resident cards; employment authorization documents; foreign passports with the proper temporary stamps; and for aliens working for a specific employer, foreign passports with proper authorizing documents. Documents that may be used for establishing identity only ("List B" documents) include driver’s licenses or identification cards issued by states or U.S. possessions, Native American tribal documents, and Canadian driver’s licenses or photo ID cards issued to Canadians authorized to work for a specific employer. To establish employment eligibility only ("List C" documents), newly hired employees may present Social Security account numbers without employment restrictions, Native American tribal documents, and documents authorizing an employee to work for a specific employer. Birth certificates have been removed from the list of documents that can be used to establish employment eligibility. In addition to reducing the number of acceptable documents, the proposed rule includes a new "short form" for reverification of current employees. The proposed rule also clarifies and expands the conditions under which an employer may accept a receipt for a document instead of the document itself. Further, employers may have new employees complete the Form I-9 prior to or at the time of hire, provided an employment offer has been made and the verification requirements are completed at the same time in the hiring process for all new employees. The Next Step The INS has not yet set a deadline for publication of the final rule and the revised Form I-9. Officials at the INS indicate that the final rule should be issued by the end of the year. Until the rule is made final, employers should comply with the current INS requirements as described in Hiring, page 202:19, note 17. When enacted, the changes will be reported on in the next issue of the Employer Bulletin newsletter and added to Hiring, Chapter 202. To view the proposed rule and Form I-9 changes or obtain a copy of current document requirements, visit the INS web site at http://www.ins.usdoj.gov/employer/iirirawb.htm. This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice. For more articles please click here.
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