Form I-9 Frequently Asked Questions

Updated 04/07/2008

 

New Form I-9 is Latest in DHS Immigration Enforcement Strategy

Robert Divine

The Department of Homeland Security has announced and published a new, long-awaited version of the I-9 form used to confirm the identity and work authorization of every new hire since 1986. The new form puts into practice the reduction of the number of documents that had been technically required since 1996. Employers should start using the new I-9 form as quickly as possible, and no later than December 7. DHS will publish a Federal Register notice imminently giving employers 30 days from then to begin using the form.

The changes in the new forms are as follows:

Five documents have been removed from List A of the List of Acceptable Documents:

Certificate of U.S. Citizenship (Form N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)

One document was added to List A of the List of Acceptable Documents:

Unexpired Employment Authorization Document (I-766)

All the Employment Authorization Documents with photographs in circulation are now included as one item on List A:

I-688, I-688A, I-688B, I-766

Instructions regarding Section 1 of Form I-9 now indicate that the employee is not obliged to provide the Social Security Number in Section 1 of Form I-9, unless he or she is employed by an employer who participates in E-Verify. (Of course, other laws may require collection of the Social Security number in the hiring process.) The instructions section on photocopying and retaining Form I-9 now includes information about electronically signing and retaining I-9 forms.

I-9's format, font, organization and grammar have changed slightly, but the manner in which the form is completed has not changed. Previously completed I-9 forms should not be re-done with the new form. If, however, an employer needs to re-verify an existing employee whose I-9 was completed on the old version and whose work authorizing document has now expired, the new version of Form I-9 must be used, thus completing a new form altogether, rather than using the bottom portion of the old version.

DHS has also published a new Handbook for Employers, Form M-274, which had not been updated since 1991. The new handbook contains clearer explanations of employers' obligations and updated examples of acceptable documents. Unfortunately, the handbook fails to show all the different variations of the shown document types that can be valid, fails to explain sufficiently that other versions might be valid, fails to depict several types of acceptable documents at all, and depicts some types of documents incorrectly. Thus, employers continue to lack clear governmental guidance in their role as involuntary document reviewers.

DHS had been planning to re-vamp the Form I-9 more completely through a comprehensive rulemaking and delayed the effort in part from anticipation of comprehensive legislation that might have required even more changes. DHS has decided to publish the just-announced version with only the above changes as part of its publicized effort to pursue all available measures to enforce existing immigration laws in the employment context.

The new form and information can be found on the Internet at the following locations:

DHS recently published a regulation that announced an intention to hold employers accountable for "constructive knowledge" of their employment of unauthorized aliens, including admissions from alien workers themselves, requests by workers for immigration sponsorship, no-match letters from the Social Security Administration and notifications from DHS. DHS and SSA announced that this Fall's round of no-match letters would contain also a letter from DHS warning the employer not to ignore the no-match finding. The regulation and the DHS letter set forth specific steps for an employer to take in response to the SSA no-match letter that would provide a safe harbor for the employer from DHS administrative sanctions. A federal court has since enjoined the regulation and the DHS insert for no-match letters, but DHS is expected to take an aggressive stand concerning constructive knowledge in prosecutions of employers and their managers that are ongoing all over the United States.

Meanwhile, numerous states have enacted laws that require employers in different situations to participate in otherwise voluntary federal verification programs and certify their avoidance of unauthorized workers under penalty of lost state contracts, lost business licenses and other lawsuits and enforcement actions. The pattern of regulation concerning immigration compliance has become increasingly complex with high stakes.

1. Q. When filling out the I-9 Form, can an employer accept a social security card from an  alien as proof of work authorization?

A - If the Social Security Card does NOT  have a statement that it is not valid for  employment purposes, it should be accepted as proof of work authorization.   Such an unrestricted Social Security card is clearly listed as a document that establishes employment eligibility on the back of the I-9 Form.

2. Q Are there different types of Social Security cards?
 

A. If you go to the Social Security Administration's (SSA) website, you will learn that SSA reports that it currently issues three types of social security cards. Here is what SSA says on its website about the types of social security cards it currently issues:

We issue three types of Social Security cards.
All cards show your name and Social Security number.
The first type of card shows your name and Social Security number and lets you work without restriction.

We issue it to:
U.S. Citizens and People lawfully admitted to the United States on a permanent basis.


The second type of card shows your name and number and notes,
VALID FOR WORK ONLY WITH DHS AUTHORIZATION.”

We issue this type of card to people lawfully admitted to the United States on a temporary basis who have DHS authorization to work.

The third type of card shows your name and number and notes,

“NOT VALID FOR EMPLOYMENT.” We issue it to people from other countries
Who are lawfully admitted to the United States without work authorization from DHS, but with a valid non-work reason for needing a Social Security number; or
Who need a number because of a federal law requiring a Social Security number to get a benefit or service.

I-9 Frequently Asked Questions

I-9 Compliance

I-9 Verification

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