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Immigration News: USCIS Finalizes I-9 Document Regulation

December 17, 2008

By The Immigration Practice Group

On December 12, 2008, U.S. Citizenship and Immigration Services (USCIS) released an advance copy of its interim final regulation revising the list of documents acceptable for completing Form I-9, Employment Eligibility Verification.

The regulation has been submitted to the Federal Register for publication. It will take effect 45 days after the date of publication, which is expected to occur within the next few days. USCIS has also revised Form I-9 to conform to the changes made by the regulation. An informational copy of the revised form will be provided in the Federal Register when the regulation is published.

Once the interim final regulation takes effect, employers will be required to use the revised Form I-9 for all new hires and to reverify any current employees with expiring work authorization. The current version of Form I-9, dated 6/5/07, will no longer be valid once the regulation takes effect. USCIS also announced that it is revising the M-274, Handbook for Employers, and will make it available on the agency's website in the near future.

The interim final regulation makes the following changes to the I-9 document list:

  • All documents presented by employees in connection with completing Form I-9 must be unexpired. This is a significant change from current regulations, which provide that the U.S. passport and all List B documents (establishing identity) are acceptable even if they are expired. Once the regulation becomes effective, employers may only accept valid, unexpired documents when verifying (or reverifying) an employees work eligibility.

  • Form I-688, Temporary Resident Card, and Forms I-688A and I-688B, Employment Authorization Cards, are eliminated from the group of List A documents (establishing both identity and employment eligibility). According to USCIS, these documents are no longer issued and have all expired. Among the various versions of the Employment Authorization Document that have been issued by USCIS or the INS, only the Form I-766, may be accepted once the regulation takes effect.

  • Foreign passports containing certain machine readable immigrant visas that are pre-printed with a temporary I-551 notation (temporary evidence of lawful permanent resident status) are added to List A.

  • Documents accepted under List A (establishing both identity and employment authorization) will now include 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.

We will continue to monitor the situation and will issue additional alerts as information becomes available.