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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.

Social Security Resumes Sending No-Match Letters

In an April 2011 transmittal the Social Security Administration has announced that after a four year hiatus that it has resumed sending no-match letters to employers. SSA did not send the letters for tax years 2006 through 2009 and has discontinued the EDCOR letters which contained multiple employee data. SSA has resumed sending employer DÉCOR letters for individual employees in April 2011, for tax year 2010, and has discontinued the EDCOR letters which contained multiple employee data.

Employers send the SSA earnings reports (W-2 Forms) with the employee's name and Social Security number (SSN). Prior to 2007, if the W-2 information that the employer submitted did not match SSA records, the SSA sent employer correction request educational correspondence (EDCOR) also referred to as a “code v” or “no-match” letter, which informed the employer of the discrepancy. In the alternative, if the address if the name and/or social security number listed on the employer’s submitted W-2s did not match the information in the SSA database SSA could send an employee version of the employer decentralized correspondence (DECOR) letter to employees at their home address .

SSA reminds employers that there are many possible reasons why the information they reported did not match SSA records. For example, the discrepancy could be due to a transcription or typographical error, an incomplete or blank name or SSN, or a name change. Employers are requested to check if the information provided to SSA matches employer records. A no-match between an employee's name and SSN in the employer and SSA’s records does not mean that the employee lacks work authorization, nor does it make any statement regarding a worker's immigration status. The entire SSA April Transmittal is found on our Publications page. A sample DÉCOR letter is also found on our Website.

The no-match letters are one of the employer records that ICE agents and forensic auditors request and/or subpoena during the I-9 administrative inspections. While no-match letters are not currently considered direct evidence of the constructive knowledge for knowingly continuing to employ civil and criminal charges, they are treated as investigative indicia that the employer has been notified that reported information does not match SSA records.