Sunday, April 17, 2011

USCIS Publishes the Form I-9 Unexpired Document Final Rule

Fourteen years after the passage of the IIRAIRA and more than a decade after the earlier INS proposed rule, the CIS published the Final Rule that continues the agency’s implementation of the statute’s document reduction mandate. The Final Rule adopted the 2008 Interim Rule without change. The Interim Rule was published with a February 2, 2009 effective date, but DHS subsequently delayed the implementation of the Form I-9 Interim rule until April 3, 2009. Both permissible 2009 versions of the I-9 now contain the lists that reflect the Unexpired Document Final Rule’s requirements.

The Final Rule requires that all documents presented during the Form I-9 verification process be unexpired adopting the Interim Rule’s the dual rationale that expired documents are prone to fraud, and that they may not possess the current biometric safeguards. A document containing no expiration date, however, such as the social security card, is considered unexpired.

The Final Rule contains the updated Form I-9 Lists A and C, deleting some documents and adding others. The three expired and out-of-issue documents deleted from List A are: (1) Form I-688, Temporary Resident Card; (2) Form I-688A, Employment Authorization Card; and (3) Form I-688B, Employment Authorization Card.

Two documents were added to List A: (1) The temporary I-551 printed notation on a machine-readable immigrant visa, in addition to the foreign passport with a temporary I-551 stamp; (2) and a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

The computer-generated Form I-94A was added to List A, to accompany the familiar Form I-94 that nonimmigrants continue to use for admission at U.S. ports of entry and preclearance offices. While the rule did not add the Passport Card to the regulation, it did add that document to the U.S. Passport listed on List A that is found on the Form I-9 revision.

Technical revisions to the lists of documents include replacing the term “employment eligibility” with “employment authorization” necessary to conform the regulations to the statutory language. The rule also corrects the titles of two State Department documents: Form FS-545 is now correctly titled “Certification of Birth” and Form DS-1350 is correctly entitled “Certification of Report of Birth.”

The Form I-9 itself was revised and published in the Federal Register as part of the interim rulemaking. The revision to the form included the above changes to the List A and C documents, as well as adding a “noncitizen national of the United States” box to the employee's attestation block to Section 1 of the form.