April 2009

USCIS ISSUES NEW I-9 FORM

Effective April 3, 2009, all employers will be required to use the new I-9 Form and List of Acceptable Documents when verifying the identity and employment eligibility of newly hired employees. The new I-9 Form should be used for all employees hired on or after April 3, 2009. The new I-9 Form is available on the USCIS website, which can be found at http://www.uscis.gov under "Employer Information," which is located under "Services & Benefits".

The new I-9 Form includes a new List of Acceptable Documents. Most notably, employees are no longer permitted to present expired documents. Likewise, certain Temporary Resident Cards and older versions of the Employment Authorization Cards/Documents have been removed from the List of Acceptable Documents, including Forms I-688, I-688A, and I-688B. The USCIS no longer issues these cards and the documents in circulation have since expired. The following documents have also been eliminated from 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); and

• Unexpired Refugee Travel Document (Form I-571).

It should be noted that the U.S. Passport card has been added to the List of Acceptable Documents.

In addition, the "attestation" box in Section 1 of Form I-9 includes a new selection for noncitizen nationals of the United States. Noncitizen nationals include persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands and certain children of noncitizen nationals born abroad.

Finally, although Section 1 includes a space for the employee’s social security number, an employee is not required to provide his social security number unless his employer is participating in the USCIS Electronic Employment Verification Program (E-Verify).

DELAY FOR FEDERAL CONTRACTORS

On June 6, 2008, President George W. Bush issued Executive Order 12989 directing federal agencies to require federal contractors to electronically verify the employment eligibility of their employees working in connection with federal contracts. The implementation of the Federal Acquisition Regulations (FAR) governing the requirement that federal contractors verify the employment eligibility of their employees through E-Verify has been postponed to May 21, 2009.

Federal contracts awarded and solicitations issued after May 21, 2009, must include a clause committing government contractors to use E-Verify. The same clause must also be included in all subcontracts over $3,000 for services or construction. There are numerous exceptions to the E-Verify requirement, including contracts that are less than $100,000 and contracts that are for commercially available off-the-shelf items. Likewise, contracts with a performance period of less than 120 days are exempt from the FAR, as are contracts that are performed outside the United States.

Federal contractors awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. Thereafter, federal contractors will have to begin using E-Verify to confirm that all new hires and existing employees directly working on federal contracts are authorized to legally work in the United States.