United States: Best If Used By: Employers Must Now Check The Expiration Date On All Form I-9 Documents

Last Updated: May 14 2009
Article by Richard Shaw, Theresia Moser and Roy Powell

Most Read Contributor in United States, September 2019

As of April 3, 2009, the Form I-9 has changed yet again. While there are no substantive changes to the face of the form, there are substantive changes to the lists of acceptable documents to verify employee identity and employment authorization. The most important change is that now only unexpired documents are acceptable for purposes of verification. Failure to use the current form could subject an employer to fines and penalties.

Background

Employers are required to use and maintain the Form I-9 to verify that employees may legally work in the United States. As part of this process, an employee presents documents to the employer as proof of the employee's identity and employment authorization. The Form I-9 includes lists of acceptable documents an employee may present for purposes of verification. An employee must present either a document from List A (documents that establish both identity and employment authorization), or documents from both List B (documents that establish identity) and List C (documents that establish employment authorization1).

In late 2007, U.S. Citizenship and Immigration Services finally amended the Form I-9 to bring it in line with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which had reduced the number of List A documents that an employer may accept to verify both the identity and employment authorization of new employees. As of December 27, 2007, the Certificate of United States Citizenship (Forms N-560 and N-561), Certificate of U.S. Naturalization (Forms N-550 and N-570), Form I-151 (an old version of the Alien Registration Receipt Card or "green card"), Unexpired Reentry Permit (Form I-327), and Unexpired Refugee Travel Document (Form I-571) were removed from List A for purposes of the Form I-9. They are no longer valid as proof of employee identity and employment authorization.

On December 17, 2008, the Department of Homeland Security ("DHS") published an interim rule identifying yet another change in the lists of documents an employer may use to verify an employee's identity and employment authorization. The rule was originally scheduled to go into effect on February 2, 2009, but implementation of the rule was delayed to give the new presidential administration time to review it. The review period has come and gone, and the rule is now in effect, without substantive change from the interim rule.2

The New Form I-9

Beginning April 3, 2009, employers must use the new Form I-9. The portion of the form that is filled out by employer and employee is virtually identical to the previous version of the form, so the best way to ensure that the current form is being used is to check the bottom right corner for the phrase "Form I-9 (Rev. 02/02/09) N." The substantive changes to the form appear in the lists of acceptable documents. The most important change appears at the top of the form: "All documents must be unexpired." In the past, an expired U.S. passport could be used to verify an employee's identity and work authorization. In addition, all List B documents were acceptable to establish an employee's identity, even if they were expired. This is no longer the case. This change in the law was prompted by DHS's concern that expired documents may be more easily obtained by counterfeiters and then used by unauthorized workers to fraudulently obtain employment in the United States.

Because only unexpired documents are now acceptable, certain documents have been removed from List A entirely. Temporary Resident Cards (Form I-688) and Employment Authorization Cards (Forms I-688A and I-688B) used to be on List A and could be used to establish an employee's identity and employment authorization. However, these documents are no longer issued, and any that were issued previously have since expired. Therefore, Forms I-688, I-688A, and I-688B no longer appear on List A and are no longer acceptable.

The new Form I-9 not only limits the lists of acceptable documents, it also adds some new documents and clarifies others. New List A documents that may be used to establish an employee's identity and employment authorization are passports from the Federated States of Micronesia ("FSM") or the Republic of the Marshall Islands ("RMI") with Form I-94 or I-94A indicating nonimmigrant admission under the Compact of Free Association between the U.S. and FSM or RMI.

The clarifications made by the new Form I-9 are minor technical changes, such as:

  • On List A, including Form I-94A as an alternative to Form I-94 to be presented with a foreign passport by nonimmigrant aliens authorized to work for a specific employer. Form I-94A is virtually identical to Form I-94, except the fields are completed using a computer rather than being written in by hand.
  • On List A, including a temporary I-551 printed notation on a machine-readable immigrant visa affixed to a foreign passport as an alternative to a temporary I-551 stamp on a foreign passport.
  • Noting that Form DS-1350 on List C is actually a Certification of Report of Birth issued by the Department of State, rather than a Certification of Birth Abroad.

As in the past, employers should carefully check documents presented by employees to ensure that the employee has presented a document currently on List A or documents currently on Lists B and C. Employers must also ensure that the documents reasonably appear to be genuine and related to the employee presenting them. An additional step employers must take as a result of the new Form I-9 is to check the expiration date on all documents submitted to ensure that they are still valid. Because DHS has not indicated otherwise, it appears likely that this requirement applies to employees hired from April 3, 2009, forward and not to employees hired before that date.

Increase in Civil Fines

Employers that fail to complete and retain proper I-9 forms can face civil penalties of between $110 and $1,100 for each individual violation. Employers that knowingly hire unauthorized workers may be subject to even steeper civil penalties. On March 27, 2008, civil fines for such knowing violations increased to the following:

  • First offense, from $375 to $3,200 for each unauthorized alien.
  • Second offense, from $3,200 to $6,500 for each unauthorized alien.
  • More than two offenses, from $4,300 to $16,000 for each unauthorized alien.

In addition, employers that engage in a pattern or practice of hiring unauthorized workers may face criminal fines of up to $3,000 for each unauthorized worker, imprisonment for up to six months, or both.

Immigration Compliance Generally

There is increasing scrutiny on the immigration compliance of employers. Workplace audits and raids by Immigration and Customs Enforcement seek not to only to find unauthorized workers, but to hold employers accountable for their hiring practices. This makes it more important than ever for employers to ensure that they are using the proper Form I-9 and complying with all document retention requirements. Establishing a comprehensive immigration compliance program is the best way for an employer to ensure that it is complying with all immigration laws and is prepared for an immigration audit.

Footnotes

1. The phrase "employment authorization," as used in Lists A and C, is a change from prior I-9 forms, which previously used the phrase "employment eligibility." The purpose for this change was to make the language in the Form I-9 and corresponding regulations consistent with the language used in the underlying statute.

2.DHS issued a final rule on February 23, 2009, adding the military identification card to the list of documents acceptable to establish both identity and work authorization, but only for use by the Armed Forces in verifying enlisted personnel. This change is so limited in nature that the military identification card remains only on List B (documents that may be used to establish identity) on the Form I-9. This is likely to avoid confusion by private employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions