Immigration Update – The New “New” Form I-9
January 2009

Just in case you thought immigration was no longer a hot-button subject, beginning February 2, 2009, employer must start using a new Form I-9. This new Form I-9 applies to all new hires and also to those current employees whose employment authorization must be reverified. Employers using older versions of the Form I-9 after February 2, 2009 may be subject to fines. It is important that prior to February 2, 2009 employers use the June 5, 2007 version of the Form I-9.

The U.S. Citizenship and Immigration Services (“USCIS”) has also changed which documents may be acceptable for identity and employment authorization, and now requires employers to only accept unexpired documents.

Those documents removed from List A, and thus can no longer be used to establish both an employee’s identity and employment authorization are:

• Form I-688 Employment Authorization Document;
• Form I-688A Employment Authorization Document; and
• Form I-688B Employment Authorization Document.

Those documents added to List A, allowing employers to accept these for purposes of establishing an employee’s identity and employment authorization are:

• Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa;
• A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI; and
• A U.S. passport card.

Additional Changes to the Form I-9

Beginning February 2, 2009, an employer may no longer accept expired documents, including U.S. passports and all List B documents used to establish identity. Additionally, in Section 1 of the February 2, 209 Form I-9 "citizen of the United States" and "noncitizen national of the United States" are now two separate categories. Noncitizen nationals of the United States are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad.

The February 2, 2009 version of From I-9 is now available at http://www.uscis.gov/i-9.

As we previously stated, proper administration of the Form I-9 process is becoming increasingly important. We recommend employers work with legal counsel to conduct a spot audit of their Form I-9 records to ensure the forms are being properly completed and maintained. Please do not hesitate to contact us at 702-474-2614 if you have questions or concerns.

This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice.  Readers should seek professional legal advice on matters involving these issues.

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