Originally published in . . .

Volume 6, Number 2, Summer-Fall 1997

 

INS Form I-9 in Transition

Stephen R. Sutter

On October 6, 1997, President Clinton signed legislation that included an extension of a September 30, 1997, deadline for the Immigration and Naturalization Service (INS) to implement the document reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). A week earlier, on September 30, 1997, the INS had published an "Interim Designation of Acceptable Documents for Employment" in the Federal Register.

The INS intends to propose soon a more extensive revision of the employment verification process - and unveil a new Form I-9 with instructions. Those rules will "extend the date of the interim rule to the end of March," according to Marion Metcalf, INS Special Assistant, in Washington D.C.

Employers should continue using the current Form I-9 (edition dated 11/21/91) and its reference list of documents to complete the employment verification process until Form I-9 is revised. The INS will forgo enforcement actions against employers who continue to rely on the existing Form I-9 until it implements the new document reduction program, together with a revised Form I-9 and guidance for employers.

To minimize confusion among employers and workers, and the potential for discriminatory hiring practices, the interim rule makes only those changes to current regulations needed to conform with IIRIRA requirements. The interim rule reduces the list of documents acceptable for employment verification only under "List A" (documents that establish both identity and employment eligibility).

The interim rule keeps the "Alien Registration Card" (the so-called green card) as a List A document, but it is now described by regulation only as "Alien Registration Receipt Card or Permanent Resident Card, Form I-551" - removing the words "INS Form I-151," which followed the "Receipt Card" part of the former description. This confirms that (since March 21, 1996) only the newest version of the form, Form I-551, is acceptable for employment authorization purposes.

Documents now struck from List A are (1) a Certificate of U.S. Citizenship, (2) INS Form N-560 or N-561, and (3) a Certificate of Naturalization, INS Form N-550 or N-570. Use of a foreign passport with a Form I-94 is limited to those nonimmigrants authorized to work for a specific employer. The interim rule made no changes with respect to documents in either "List B" (evidence of identity only) or "List C" (evidence of employment authorization only), although all three lists will probably be pruned back in the next rule-making action.

Likely to stay on List A, among other documents, is the Employment Authorization Card, INS Form I-688A (if unexpired). Final rules will probably dislodge most List B documents, including federal and local ID cards. Almost certain to stay on List B will be a state-issued driver's license or ID card. Other List B documents likely to be retained include: Native American Tribal Document; driver's license issued by a Canadian government authority; and perhaps a "School ID Card with Photo."

A social security card (unrestricted) will continue as a List C document. However, the INS is likely to propose removal of birth certificates as well as certain other List C documents in future proposed rules that will supersede the interim rule.

The public will have an opportunity to comment on proposed changes perhaps as soon as November. Metcalf expects that documents will be listed on the front of the revised Form I-9 (like the original 1987 version with boxes to check and spaces in which to fill in document numbers). Instructions for Form I-9 will be two pages, and they will include information on reverification of eligibility and replacement of previously used documents that are no longer valid.


Updates for employers on implementation of the IIRIRA are being posted on the INS Internet website at http://www.ins.usdoj.gov/employer/iirirawb.htm, which also includes a downloadable version of the current I-9 form.


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