Recent immigration raids and steep penalties imposed on employers are frequent reminders of why immigration law compliance is important. Most employers know that they may not knowingly employ people who are not authorized to work in the United States. However, employers should also be aware that a good-faith defense is available if they correctly follow Form I-9 procedures and are otherwise unaware of an employee's illegal status. This article discusses recent rules issued by U.S. Citizenship and Immigration Services that change some of the requirements for Form I-9.

The basic Form I-9 procedures remain unchanged: 1) the form must be completed on the first day of the employee's paid work, 2) within three business days of the date of hire employers must physically review documents to verify the employee's identity and authorization to work in the U.S., and 3) the employer must retain forms for all employees for three years after the date of hire or one year after the date of termination, whichever is later.

The new final interim rule, which is expected to be implemented April 3, 2009, changes the requirements for acceptable documents to use for the Form I-9 verification process. Employers will discontinue using the current edition of Form I-9 dated June 5, 2007, and will instead use the new Form I-9 for all new hires and required reverifications. (Unless reverification is otherwise required, employers should retain the old Forms I-9 for their existing employees and do not need to fill out a new form for such employees.)

The most significant change is that employers will not be able to accept expired documents to verify employment authorization. For example, employees could previously submit an expired U.S. passport as a form of identity. Under the new rule, an expired passport would not be acceptable. A document that does not have an expiration date (such as a social security card) is deemed to be unexpired. The new form also removes some outdated employment authorization documents that are no longer issued: the Form I-668, Temporary Resident Card; and the Form I-688-A and I-688-B, Employment Authorization Cards. Several new documents are added to the list, including foreign passports that have temporary I-551 notations on machine-readable immigrant visas.

Because USCIS has extended the public comment period and delayed implementation of the interim rule, the final iteration of the rule may differ from the provisions described in this article. Updates will likely be available on the USCIS Web site, and we urge you to contact us with any questions or concerns you may have about the requirements and procedures involved with the new rule.

Britney L. Schnathorst is an associate with BrownWinick, a Des Moines, Iowa-based law firm serving the renewable fuels industry. Reach her at bls@brownwinick.com or (515) 242-2487.