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Revised Form I-9 Now in Effect

April 2009

On December 17, 2008, the Department of Homeland Security (“DHS”) promulgated a new rule that substantially changes the process previously used by employers to confirm an employee’s identity and eligibility to work in the United States. This new rule is part of DHS’ effort to reduce the number of undocumented workers in the United States. Recently, the United States Citizenship and Immigration Service (“USCIS”), formerly known as the Immigration and Naturalization Service, issued a revised Form I-9 in order to implement the new DHS regulation.

All employers are now required to use the revised Form I-9 Employment Verification Form, which substantially changes which documents are deemed acceptable as an individual’s proof of identity and eligibility to work in the United States. Since 1986, when the Immigration Reform and Control Act (“IRCA”) was first enacted, each employer has been required, upon the hiring of a new employee, to complete a Form I-9 and review certain documents to confirm that the employee is who the employee claims to be and that the employee is lawfully entitled to work in the United States. In order to substantiate the information contained on the I-9, the newly hired employee must present certain documents, such as a driver’s license, United States passport and Social Security card.

The list of documents deemed sufficient by the USCIS to confirm identity and eligibility to work in the United States has been substantially overhauled on the revised Form I-9. Many of the documents previously accepted as evidence of identity and eligibility to work are no longer on the approved list. However, the USCIS has determined that an Unexpired Employment Authorization Document (I-766), which was not previously identified as an acceptable form of identification, will now suffice to confirm identity and eligibility to work.

Surprisingly, however, the revised Form I-9 does not require an employee to provide his or her Social Security number in Section 1 of the Form I-9, unless the employer participates in DHS’ E-Verify program, which is the electronic employment verification system that employers may choose to participate in to verify their employee’s employment eligibility. Under this new regulation, employers will be permitted to sign and retain Form I-9s electronically.

The revised Form I-9 is only required for use with new employees. Employees hired prior to April 3, 2009 do not need to complete a new form unless the employer needs to re-verify an employee with expiring employment authorization as of April 3, 2009.


For more information, please contact: Catherine P. Wells at (973) 530-2051 or via email at cwells@wolffsamson.com; or Denise J. Pipersburgh at (973) 530-2090 or via email at dpipersburgh@wolffsamson.com.

 

This Client Alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your specific situation or any legal questions you may have.