Implementation of New I-9 Delayed

On December 17, 2008, the U.S. Department of Homeland Security (DHS) published in the Federal Register an interim final rule revising the Form I-9 and List of Acceptable Documents attached thereto. A correction was subsequently published on January 16, 2009, contributing to the confusion already surrounding the new form. DHS later posted the new I-9 at indicating that it must be used by all employers effective February 2, 2009. Consequently, numerous interest groups proposed that the implementation of the I-9 be delayed. Late in the afternoon on January 30, 2009, that request was answered – DHS filed a last minute notice announcing that implementation of the form would be postponed until April 3, 2009. Notice of the delay appears in the February 3, 2009 edition of the Federal Register.

The interim rule alters both the I-9 form and the List of Acceptable Documents by changing some of the language on the form itself and adding to and deleting from the List of Acceptable Documents. In Section 1, the employee portion of the Form I-9, DHS has amended the language to include a noncitizen national. A noncitizen national includes someone born in American Samoa, certain citizens of the Trust territories of the Pacific Islands, and some children of noncitizen nationals born outside the United States.

The remainder of the changes imposed by the interim rule deal with Section 2, the employer portion of the Form I-9, and the List of Acceptable Documents. Under the law’s current incarnation, the U.S. passport and all List B documents are acceptable even if they are expired. A document containing no expiration date, such as a Social Security card, is considered “unexpired” and is therefore acceptable for I-9 purposes.

Under the interim rule, DHS has changed the List of Acceptable Documents to include the new U.S. Passport Card in List A. Two other documents have also been added to List A, and they will verify both identity and work authorization:

1. A foreign passport notation on a machine-readable immigrant visa that is pre-printed with a temporary I-551 notation (confirmation of legal permanent residence status); and

2. A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 demonstrating valid status pursuant to the Compact of Free Association with the United States.

A number of documents have been removed from List A because DHS no longer issues them and any such documents previously issued have now expired. These include:

1. Form I-688, Temporary Resident Card;

2. Form I-688A, Employment Authorization Card; and

3. Form I-688B, Employment Authorization Card.

Finally, the interim rule deletes all references to the former U.S. Department of Justice Immigration and Naturalization Service (“INS”) and replaces such references with “DHS” wherever “INS” appears in the relevant laws and documents. 

This entry was authored by Lisa Cottle, an associate in Littler's Cleveland office.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.