[author: Doug Hass]
Employers must complete United States Citizenship and Immigration Services’ (USCIS) Form I-9, which requires all newly hired employees to verify their identity and authorization to work in the United States. Eagle-eyed employers may have noticed that the current form contains the ominous notation “OMB No. 1615-0047; Expires 8/31/12” in the top right corner. Earlier this month, the USCIS announced that the most recent version of Form I-9 remains valid despite the August 31 OMB expiration date. Normally, members of the public are not required to respond to collections of information on a federal form unless the form displays a currently valid OMB Control Number and expiration date. Until the USCIS advises otherwise, employers should continue to use the current Form I-9, which USCIS last revised in August 2009.
The unintended “expiration” of the current Form I-9 relates to the complicated process federal agencies must follow before revising public use forms. Before a federal agency can extend, revise, or create a new public use form or reporting requirement, it must first notify the public of its intent and allow for a period of public comment on the new or revised requirement. All public use forms like Form I-9 are also subject to review by the OMB pursuant to the federal Paperwork Reduction Act.
In March, USCIS published a notice in the Federal Register inviting public comment on a draft revised Form I-9. In addition to the impending expiration of Form I-9, the agency cited a need to update Form I-9 to meet its current standards and to be more customer-friendly and clear. On August 22, 2012, the agency published another notice, opening a new 30-day public comment period on the form. Public comments are due by September 21, 2012. The revised form includes a number of changes to both the instructions and the form itself. These changes include expanded instructions, a new layout, additional collection requirements about foreign passports for aliens using a Form I-94, and new optional fields for an employee’s e-mail address and telephone number.
Notwithstanding any proposed revisions to the form itself, new employees must still complete the Form I-9 no later than their first day of employment and present proof of identity and proof of employment eligibility. Within three business days, employers must review any supporting documents and complete section 2 of Form I-9. Of course, employers should carefully follow Form I-9’s instructions to avoid requesting or collecting additional documentation beyond what is required, and should never require U.S. citizen or other lawful permanent resident employees to “reverify” their employment eligibility. Doing so could subject the employer to significant liability under the antidiscrimination provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.