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The final rule on verifiying job eligibility
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ALLEN E KAYE
U.S. Citizenship and Immigration Services (USCIS)
announced a rule, scheduled to be published in the
Federal Register that adopts, without change, an inter-
im rule to improve the integrity of the Employment
Eligibility Verification (Form I-9) process. USCIS
received approximately 75 public comments in
response to the interim rule, which has been in effect
since April 3, 2009.
All employers, agricultural recruiters and referrers-
for-a-fee are required to verify the identity and employ-
ment authorization of each person they hire for
employment in the United States. This requirement is
set forth in section 274A(a)(1)(B) of the Immigration
and Nationality Act, 8 U.S.C. 1324a(a)(1)(B). The key
changes made to the Form I-9 process by the interim
rule and adopted by the final rule include: prohibiting
employers from accepting expired documents for com-
pletion of Form I-9 and adding and modifying several
documents on the Lists of Acceptable Documents. The
final rule will be effective on May 16, 2011. Employers
may continue to use the current version of the Form I-
9 (Rev. 08/07/2009), or the previous version (Rev.
Q. What does the final rule accomplish?
A. The final rule adopts, without change, the changes
made to the Form I-9 process by the Department of
Homeland Security’s (DHS) interim final rule that has
been in effect since April 3, 2009. The changes further
DHS’s ongoing effort to increase the integrity of the
employment authorization verification process. The
key changes include:
; Prohibiting employers from accepting expired docu-
; Eliminating from List A identity and employment
authorization documentation Forms I-688, I-688A,
and I-688B (Temporary Resident Card and outdated
Employment Authorization Cards).
; Adding to List A foreign passports containing tempo-
rary I-551 printed notations on certain machine-read-
able immigrant visas.
; Adding to List A as evidence of identity and employ-
ment authorization valid passports for citizens of the
Federated States of Micronesia (FSM) and the Republic
of the Marshall Islands (RMI), along with 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.
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Q. Why can’t I present an expired document?
A. DHS wants to ensure that documents presented
for use in the Form I-9 process are valid and reliably
establish both identity and employment authorization.
Expired documents are prone to tampering and fraud-
ulent use. The requirement to present only unexpired
documents takes into account the time limits placed on
these documents by their issuing authorities. If a docu-
ment does not contain an expiration date, as is often
the case with a Social Security card, it is considered
Q. Does this final rule make any changes to
how Form I-9 is completed?
A. No. The final rule adopts, without change, the
interim final rule published on December 17, 2008 and
in effect since April 3, 2009. It does not make any
changes to how the Form I-9 is currently completed.
Q. Is USCIS issuing a new Form I-9 with this
A. No. Because the final rule adopts the interim rule
without change, USCIS is not issuing a new
Form I-9 with this rule.
Q. Which versions of Form I-9 may I use?
A. Employers may continue to use either the current
version of Form I-9 (Rev. 08/07/2009) or the previous
version (Rev. 02/02/2009). These dates are located on
the bottom right-hand corner of the form.
Q. Where can I obtain detailed information
about comments you received and how you
A. Discussion of the public comments is featured in
the final rule, available for review on USCIS’s website at
www.uscis.gov and published in the Federal Register.
The largest number of comments addressed the interim
rule’s requirement that all documents presented for
Form I-9 purposes be unexpired. Several commenta-
tors suggested that the expired documents should be
acceptable for some period of time after expiration,
e.g., from 30 days to up to five years after expiration.
USCIS did not adopt these suggestions because of its
concerns about document fraud and employer confu-
Q. Are those comments still available for viewing?
A. Yes. The public comments are available on
www.regulations.gov under DHS Docket No. USCIS-
2008-0001. A description of those comments and the
USCIS responses to them are also available in the final
rule itself. We have posted a link to the final rule on
Q. Where may I obtain a copy of the newly
revised Employer Handbook?
A. The Handbook for Employers, Instructions for
Completing the Form I-9 (M-274) was updated on
January 5, 2011, and is available on the USCIS website
Editor’s Note: Allen E Kaye is an attorney practicing
United States immigration, naturalization, visa and
consular law in New York City for the past 30 years.
He is a graduate of Queens College (CUNY) (BA),
Columbia University Law School (JD) and New York
University Law School (LLM).
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