Risky Business

Employers Must Use Revised Form I-9 as of February 2, 2009

Here We Go Again: U.S. Citizenship and Immigration
Services Revises Form I-9

By: Martin Salcedo, Esq.
Setnor Byer Insurance & Risk

Now that employers across the country have finally become proficient in using the Employment Eligibility Verification Form—Form I-9—after its last revision in December 2007, the U.S. Citizenship and Immigration Service (USCIS) determined that Form I-9 was due for yet another revision.  As of February 2, 2009, the version of the Form I-9 dated 06/05/2007 will no longer be valid, and all employers will be required to use the newly revised version of Form I-9 dated 02/02/09.

The purpose of Form I-9 is to document that a newly hired employee (whether a citizen or non-citizen) is authorized to work in the United States.  The Form I-9 process requires employers to collect information from all new employees to verify such authorization.  Authority for the collection of such information comes from the Immigration Reform and Control Act of 1986 (IRCA), which makes it unlawful to hire, or continue to employ, an individual whom the employer knows is not authorized to work in the United States.

The Form I-9 process requires newly-hired employees to present, and employers to inspect, acceptable documentation that establishes an employee’s right to work in the United States.  The acceptable documents fall into three categories:

• documents that establish both identity and employment authorization (List A);
• documents that establish identity (List B); and
• documents that establish employment authorization (List C).

To establish identity and employment authorization, an employee may present either one original document from List A, or a combination of original documents from List B and C.  Despite the revisions to Form I-9, this process remains unchanged.  However, the list of acceptable documentation has changed.

The most significant change to Form I-9 is that all documents presented during the verification process must be unexpired.  The USCIS made this change because unexpired documents may not portray a valid status, and because they are prone to tampering and fraudulent use.

In addition to banning the use of expired documents, the revised Form I-9 includes changes to List A of acceptable documents.  Two documents have been added to List A:

• a foreign passport that contains a temporary I-551 printed notation on a machine-readable immigrant visa, which is in addition to a foreign passport with a temporary I-551 stamp; and
• a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with 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.

 Moreover, the revised Form I-9 removed three documents from List A:

• Form I-688, Temporary Resident Card;
• Form I-688A, Employment Authorization Card; and
• Form I-688B, Employment Authorization Card.

Since the USCIS no longer issues these cards, and all that were in circulation have expired, these forms are no longer considered acceptable documents and, accordingly, can no longer be used when completing the Form I-9.

The revised Form I-9 includes some other minor changes, such as providing employees with the option of attesting to being either a citizen or noncitizen national of the United States.  However, despite these changes, other aspects of the authorization process have not changed, including the following:

• Employers must still examine evidence of identity and employment authorization (using acceptable documents only) within three business days of the date employment begins.
• Employers must retain completed Form I-9’s for three years after the date of hire or one year after the date employment ends, whichever is later.
• Employers must keep the completed Form I-9’s and must not file them with the USCIS.
• Completed Form I-9’s must, upon request, be made available for inspection by officials of the U.S. Immigration and Customs Enforcement, the Department of Labor, and the Office of Special Counsel for Immigration Related Unfair Employment Practices.
• Employers cannot specify which document(s) they will accept from an employee.
• Employers cannot discriminate against employees during the Form I-9 process.

 According to the USCIS, the revised Form I-9 will streamline and improve the security of the employment authorization verification process.  Nevertheless, the prospect of change always creates the potential for confusion.  Unintentional violations of the authorization process are violations nonetheless.  Thus, employers must ensure they are properly using the updated version of Form I-9 as of February 2, 2009 to avoid the consequences of noncompliance.

To learn more about today’s HR best practices, visit our Human Resources catalog.

Written Job Descriptions under the ADAAA

Does the passage of the ADA Amendments Act of 2008, which went into effect on January 1, 2009, diminish the importance of having detailed, well-written job descriptions for the purpose of helping employers defend against claims brought under the Americans with Disabilities Act (ADA)?

No. In fact, the passage of the ADA Amendments Act of 2008 (ADAAA) greatly increases the importance of job descriptions. The Americans with Disabilities Act (ADA) protects qualified individuals with a disability only if they can perform the essential functions of the job with or without a reasonable accommodation. Individuals who cannot perform the essential job functions are not considered qualified individuals with a disability under the ADA, and therefore are not protected by it. Thus, determining a job's essential functions is critical in determining whether an individual who is applying for or occupying a particular position is protected by the ADA. Despite the significance of this determination, the ADA gives employers considerable discretion in determining which functions are essential to a position. Specifically, the ADA provides that "consideration shall be given to the employer's judgment as to what functions of a job are essential." Moreover, the ADA provides that "if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job."

Given these provisions, job descriptions have always served as a first line of defense against ADA claims. However, the passage of the ADAAA has made job descriptions even more important because the issue of whether an individual is disabled under the ADA "should not demand extensive analysis." Prior to the ADAAA, employers have generally succeeded in arguing that an individual's impairment does not qualify as a disability under the ADA. Since employers may be limited in making this argument under the ADAAA, establishing that an employee is unable to perform the job's essential functions takes on even greater significance when defending against ADA claims. Thus, employers who fail to prepare detailed, well-crafted, and up-to-date job descriptions may not be able to avail themselves of the defenses afforded by the ADA in the context of essential job functions. Therefore, employers should commit the time and effort to drafting such job descriptions for all positions.

Learn more about the ADA in our course "Understanding the ADA, Ed. 4," recently updated to include changes to the law brought about by the passage of the ADAAA.