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Immigration News - November 29, 2007

November 29, 2007

By Immigration Practice Group

Employers Must Begin Using the New I-9 Employment Eligibility Verification Form By December 27, 2007

As previously indicated in Paul Hastings' "Immigration News," dated November 8, 2007, United States Citizenship and Immigration Services (USCIS) released a revised I-9 Employment Eligibility Verification Form on November 7, 2007. The revised version of the I-9 has a revision date of June 5, 2007, which is noted as "(Rev. 06/05/07)N" on the lower right corner of the form. USCIS advised employers to begin using the amended I-9 form immediately, although later guidance from the agency (discussed in Paul Hastings' "Immigration News" dated November 13, 2007) indicated that employers would be given a 30-day transition period, to be announced by a notice in the Federal Register, during which employers would not be penalized for continuing to use the previous version of the form. That announcement has now been made. On November 26, 2007, USCIS published a notice in the Federal Register at 72 Fed. Reg. 65974, entitled "Introduction of the Amended Form I-9 and the New Handbook for Employers." The notice states that the June 5, 2007 version of the I-9 is the only valid version of the form. It also states, however, that the Department of Homeland Security will not seek penalties against employers for using a previous version of the form on or before December 26, 2007. Beginning on December 27, 2007, all employers must use the revised I-9 form to verify the employment eligibility of all newly hired employees or to reverify the employment eligibility of current employees whose work authorization has or will expire.

Social Security No-Match Update: Court Postpones Further Litigation While Department of Homeland Security Revises No-Match Regulation

The Department of Homeland Security (DHS) is revising its social security no-match regulation, and the U.S. District Court in San Francisco has stayed further litigation challenging the rule until the agency issues the revised version. The final DHS no-match regulation, entitled "Safe Harbor Procedures for Employers Who Receive a [Social Security] No-Match Letter," 72 Fed. Reg. 45611, had been scheduled to take effect on September 14, 2007. As previously reported in Paul Hastings' "Immigration News," the court issued a preliminary injunction against implementation of the final rule on October 10, 2007, finding that the plaintiffs had raised "serious questions" with three of their claims against the rule. The issues cited by the court as the basis for its decision were largely procedural, and did not necessarily signal a rejection of the substance of the regulation. On November 23, 2007, DHS filed a motion to stay the litigation while DHS conducts additional rulemaking proceedings on the no-match regulation to address the issues raised in the court's decision. DHS indicated it will revise the no-match regulation and conduct a Regulatory Flexibility Act analysis to assess the rule's impact on small businesses. DHS indicated that it expects to complete the revised regulation by March of 2008, and that it intends to move to have the preliminary injunction vacated once a revised final rule is issued. At this point, it appears unlikely that any version of the no-match regulation will become effective before the spring of 2008. While we do expect that a revised version of the rule will address the court's concerns, there is a significant possibility that the substance of the rule will remain largely unchanged. Paul Hastings will continue to monitor the litigation and will send out additional updates as more information becomes available.

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