January 8, 2008
During the Reagan administration, congress passed The Immigration Reform and Control Act of 1986 (IRCA), making it "unlawful for a person or other entity to hire, recruit for a fee, or continue to employ an alien in the United States knowing the alien is (or has become)" unauthorized to work. To verify the eligibility of each new employee, both U. S. citizens and noncitizens, the IRCA created an employment verification system by which employers utilize and retain a Form I-9, Employment Eligibility Verification Form. Not since that time has the form been reviewed or updated until now.
In response to a congressional mandate to accept fewer verification documents for identification and eligibility to work in the United States, the U. S. Citizenship and Immigration Services (USCIS) announced on November 7, 2007 that a new Form I-9 is available. The most significant revision to the Form I-9 is the removal of several "List A" documents which could be used for proof of both identity and employment eligibility. The documents that will no longer be acceptable for use include: Certificate of U.S. Citizenship (N-560 or N-570); Certificate of Naturalization (N-550 or N-570); Alien Registration Receipt Card (I-151); Re-entry Permit (I-327) and Refugee Travel Document (I-571).
"The streamlining of the I-9 is a step in reducing the burden employers face determining if a new employee is eligible to work. Illegal immigration is a major issue throughout the country. As employers, we depend on our government to provide the tools necessary to do our due diligence," explained Kristie GraySmith, human resource director at Gallivan, White & Boyd P.A. and president of the Greenville Society for Human Resource Management for 2008.
The purpose of the Form I-9 is twofold. First, the employer must ensure that each new employee completes and signs the "Employee Information and Verification" section of the form attesting that the employee is authorized to work. Second, the employer must physically examine the employee's original documentation to establish the employee's identity and employment eligibility, and to ensure that the documents presented appear to be genuine and relate to the applicant. After completing this second step, the employer must then complete and sign the "Employer Review and Verification" section of the Form I-9. This form must be completed within three days of hiring the employee.
Employers may still accept a birth certificate to prove employment eligibility, but not to prove identity. It is believed that providing a social security number will be mandatory. Even after use of the new form is required, it will not be necessary for employers to go back and complete the new version for current employees.
At this time, employers are encouraged to begin utilizing the new form right away, but its use is not mandated until USCIS issues final regulations in the Federal Register. It is unclear how soon the final regulations will be issued; however, the USCIS website states that the former I-9 form will be accepted until December 31, 2007. The revised I-9 is available from USCIS at http://www.uscis.gov/files/form/I-9.pdf. Also available is a revised version of the "Handbook for Employers, Instructions for Completing the Form I-9" that can be accessed at http://www.uscis.gov/files/nativedocuments/m-274.pdf.
Debbie Brown is a Shareholder with Gallivan, White & Boyd, P.A. and chairs their Workplace Practices Group. She is certified by the South Carolina Supreme Court as a specialist in Employment and Labor Law, and focuses her practice on the defense of employment and workers' compensation cases.
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