A New I-9 in Your Christmas Stocking

With their characteristic sense of humor, U.S. Citizenship and Immigration Services (USCIS) merrily announced a Christmas present for U.S. employers: based up the rule issued late last month in the Federal Register, employers will be required to use the new Employment Eligibility Verification Form I-9 starting Dec. 26, 2007, or risk fines and penalties.

Why, you ask, do we need a new form I-9? Because the government has changed the list of documents upon which an employer can rely in determining U.S. employment eligibility. Specifically, one document has been added and five have been removed from the category lists. As so often happens with hastily issued regulations, instructions are convoluted and have been reported in various ways. First, on the 11/8 notice, employers were informed they could use the new Form I-9, but were not required to do so. But the latest Federal Register notice says that the USCIS will allow a 30-day transition period before use of the new Form I-9 becomes mandatory, but once the transition period ends, employers who do not use the new Form I-9 could face fines or other penalties. I reread all of this and the best I can advise you is:

Start using the new I-9 NOW.

Since it’s unclear to me, it will probably be equally unclear to those tasked with I-9 audit and enforcement, so I suggest you play it safe and just begin to use the new one immediately. The documents employers can accept under List A on the new form I-9 are:

• U.S. passport.

• Permanent Resident Card or Alien Registration Receipt Card (Form I-551).

• Unexpired foreign passport with a temporary I-551 stamp.

• Unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A or I-688B).

• 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. The documents removed from List A and no longer acceptable as proof of U.S. employment authorization are:

• Certificate of U.S. Citizenship (Form N-560 or N-561).

• Certificate of Naturalization (Form N-550 or N-570).

• Alien Registration Receipt Card (I-151).

• Unexpired Reentry Permit (Form I-327).

• Unexpired Refugee Travel Document (Form I-571).

Folks, I-9 enforcement will hit a new stride in 2008 and that’s why the Administration is eager to ram this new form down the throat of Corporate America. The reasons is quite clear: with a lame duck administration, a wide-open presidential election, and a Republican party severely weakened by war-weary voters, what better way to swing voters to the right than to publicize "immigration enforcement"? Remember: Mssrs. Bush and Chertoff are operating under the Executive Branch of our government, meaning these I-9 changes and enforcement actions are immune from Congressional intervention. What more powerful tool to swing undecided voters back toward a Republican presidential candidate than to dedicate the remaining year of this administration to dramatic enforcement targeting unauthorized workers and, by implication, their employers?

Making migrants scapegoats for political purposes is nothing new, but never before have the politics meant a wholesale assault on American competitiveness. Given the current economic and political climate, the GOP views immigration enforcement as one of the few remaining tools in its political arsenal which has both a widespread public awareness factor AND the opportunity to shift their core supporters one hard step further to the right.

U.S. employers would be wise to begin 2008 with a full scale I-9 internal audit and comprehensive systemization of the I-9 process, because the ax isn’t aimed exclusively at undocumented workers this time around.