Reg Changes to Employment Verification Form

Used by more than 7.5 million employers in the United States, the Employment Verification Form (Form I-9) is the vehicle by which non-citizens can work for American companies. In 2008, the Department of Homeland Security (DHS) proposed an interim final rule that would amend the types of acceptable identity and employment authorization documents (EADs) and receipts that employees could present to employers in order to confirm their work eligibility. After almost three years of delays and comment, the final rule was published in the Federal Register on April 15, 2011. In its final incarnation, the rule promises to make the employment verification process more consistent and efficient.

The history of the I-9 form dates back to 1986 when the federal government struggled in its efforts to enforce immigration laws in the American workplace. In that year, the Immigration Reform and Control Act established protocols to confirm the eligibility of workers. Job applicants, new hires, and workers needing verification were required to show some form of identification (then 29 types) to prove their entitlement to work. Form I-9 served as the guide for acceptable forms of identification.

Born out of a need to confirm entitlement to work, the DHS revision to the acceptable identification documents was prompted by concerns that, in some cases, employers were accepting expired documents.

The newly revised I-9 employment verification form now contains 26 total types of acceptable documents in three categories, A, B, and C. Category A, the identity and employment authorization section, no longer includes temporary resident cards and expired employment authorization cards. Instead, the section lists valid and unexpired foreign passports, including those from the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI).

In the early review process for the rule change, many employers supported the amendments. Those employers objecting to the amendments cited the hardships the change would have on refugees and asylees. The federal government, while sympathetic to the concerns, believed that vulnerabilities to security supported the change.

This final rule became effective May 16, 2011; however, employers can still use older versions of the I-9 form. Under this revised rule, new hires must comply with the current requirements, while existing employees will only need to comply at the time of their re-verification.