TIPS FOR USING THE NEW I-9 APRIL 3, 2009

Studio City immigration attorney Charles M. Miller, of the Miller Law Offices provides these timely tips for the use of the 2009 edition of the Form I-9 on April 3, 2009.

Please remind your I-9 compliance staff that on April 3, 2009 the I-9 2009 edition must be used for new employees and the reverification of employees with expiring employment authorization documents.

Just in time for that deadline, the CIS has released the Handbook for Employers, April 3, 2009 edition, containing the unexpired document guidance and the revised Lists A, B and C. The revised Lists A, B and C reduce the number of permissible documents and prohibit the employer from accepting expired documents. The Handbook is a large file and is available for downloading from our Website’s Publications Page in Adobe format: M-274 2009.pdf

Here are some tips for using the new I-9 Form and the unexpired document rule.

1. DO remember to use the new Lists A and C for the reverification of the employment authorization documents of existing employees whose document(s) expire.

2. DO NOT reverify an expired U.S.passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

3. DO remember that the receipt rule is only for the receipt for the replacement of lost, stolen or destroyed authorization documents, not for renewals that have been filed but have not been issued.

4. DO reverify on section 3 of Form I-9; if you run out of room you may write the employee’s name in section 1 and complete section2 of a currently valid Form I-9. You can also use a new Form I-9 section 3. Remember to attach the new Form to the previously filled out I-9.

5. DO remember that after April 3, 2009 ONLY UNEXPIRED DOCUMENTS FOUND ON THE NEW LISTS A, or B and C, MAY BE VERIFIED OR REVERIFIED.

6. DO be aware that there are new tables of temporary employment authorization documents found on pages 8-9 of the M-274 Handbook for Employers (April 3, 2009 edition)that may be accepted IN ADDITION to the documents found on Lists A, B and C.

7. DO remember to complete section 1 of the Form I-9 on the first day of employment; For other than short term employees (3 days or less) the employee has 72 hours to produce the Lists A, or B and C documents, unless the employee produces a receipt for a replacement document.

8. DO NOT request specific documents; to do otherwise may violate the document abuse discrimination law.

9. ONLY E-Verify employers must require a social security number and a List B photo ID.

10. Do remember that all employees, except for short term employees, may take advantage of the receipt rule.

New Handbook for Employers Released

CIS has released the Handbook for Employers April 3, 2009 edition, containing the unexpired document guidance and the revised Lists A, B and C. The revised List A, B and C provisions reduce the number of permissible documents and prohibit the employer from accepting expired documents. The rule also provides minor changes to the Form I-9 to implement these changes. These changed lists and the unexpired document rule are delayed in their implementation until April 3, 2009. The Handbook is available for downloading from our Publications Page in Adobe format: M-274 2009.pdf

DHS had published a notice that the CIS is delaying the implementation of the I-9 Interim rule for 60 days or until April 3, 2009. 74 Fed. Reg. 5621(Jan. 30, 2009). The Interim rule had been scheduled to have become effective on February 2, 2009.

Employers are reminded to use the I-9 2007 edition
until the April 3, 2009 effective date. On that date the I-9 2009 edition must be used. We advise employers not to use the CIS 2007 Website version at this time, as it erroneously links to the 2009 form which should not be used until April 3rd.

Administration Delays I-9 Rule

Use the 2007 I-9 Edition Until April 3, 2009

DHS has published a notice that the CIS is delaying the implementation of the I-9 Interim rule for 60 days or until April 3, 2009. 74 Fed. Reg. 5621(Jan. 30, 2009). DHS is also extending the comment period until March 4, 2009. The Interim rule had been scheduled to have become effective on February 2, 2009.

Employers are reminded to use the I-9 2007 edition
until the April 3, 2009 effective date. On that date the I-9 2009 edition must be used. We advise employers not to use the CIS 2007 Website version at this time, as it erroneously links to the 2009 form which should not be used until April 3rd.

The Interim rule's List A, B and C provisions reduce the number of permissible documents and prohibit the employer from accepting expired documents. The rule also provides minor changes to the Form I-9 to implement these changes. These changed lists and the unexpired document rule are similarly delayed in their implementation until April 3rd.

The delay in the effective date of the Interim rule is due to the White House memorandum which asked for the time to allow the Obama administration to consider the rule’s provisions. The American Immigration Lawyers Association had called on the administration to delay and reconsider the rule's effect on employers, based on its omissions and inconsistencies with other statutes and regulations.

E-Verify for Federal Contractors Delayed Until May 21, 2009

The U.S. Chamber of Commerce has announced that the Acquisition Councils have agreed to postpone implementation of the FAR E-Verify final rule until May 21, 2009.

The January 20, 2009 memorandum from White House Chief of Staff Rahm Emanuel, ordering a 60 day moratorium on pending regulations awaiting effective dates, is cited as the authority for the delay to allow the Obama administration to review the FAR E-Verify final rule’s legal basis.

The delayed final rule would require the insertion of the E-Verify clause into applicable federal contracts, committing government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a given federal contract.

Under the new applicability date, which is scheduled to be published in Friday’s Federal Register, any solicitations that occur prior to May 21, 2009, would not contain the contract clauses that the rule would impose.

April 1, 2009- First Authorized Receipt Date for H-1B Petitions

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelors degree for professional jobs each year. The first date that H-1B petitions are accepted by the USCIS for employer filing for 2009 employment is April 1^st.

Advanced planning is necessary because the competition for the 58,200 H-1B numbers is keen. In 2008, a USCIS random selection (lottery) for successful petitions was necessary. There was a similar lottery needed for the additional 20,000 H-1B numbers for beneficiaries with U.S. advanced degrees.