On January 27, 2009, the US Department of Homeland Security (DHS) announced that it has postponed implementation of the new Form I-9 and new list of documents by 60 days, until April 3, 2009. DHS has also initiated a 30-day comment period regarding the new Form and new list of documents.

The revision was initially scheduled to go into effect February 2, 2009.  

Employers should not begin using the new Form I-9 until April 3, 2009.  In the interim, employers should continue to use the prior Form I-9 and follow the instructions from the prior Form I-9 list. Click here for the link to the prior form I-9, which remains in effect until April 3rd:  

 DHS had originally announced in December 2008 that employers who did not use the revised Form I-9 as of the February 2, 2009 were subject to penalties. The proposed changes to the revised Form I-9  were to include the following:

• A requirement that all documents presented to the employer as part of the employment eligibility verification process must be unexpired (previously, an employee could provide an expired US passport or expired List B documents).

• Elimination of Employment Authorization Document Forms I-688, I-688A and I-688B from List A. Foreign nationals that had been issued these documents in the past should have replaced them with the new Employment Authorization Document, Form I-766, which is still an acceptable List A document.

• Clarification that the Social Security account number card referenced in List C is not acceptable for Form I-9 purposes if the card “specifies on its face that the issuance of the card does not authorize employment in the United States.”

The revisions  were also  intended to implement  certain technical corrections and updates. 

The  original Federal Register notice announcing the revisions is available at 73 Fed. Reg. 76505 (Dec. 17, 2008). The revised Form I-9 is posted under the “Immigration Forms” section of US Citizenship and Immigration Services’ Web site.

If you have any questions regarding  DHS's announced postponement of implementation of the revised Form I-9 or other immigration-related matters, please contact any member of Arent Fox’s immigration compliance and enforcement practice.

Stewart Manela
manela.stewart@arentfox.com
202.857.6364

Nancy Noonan
noonan.nancy@arentfox.com
202.857.6479

Kristine Dunne
dunne.kristine@arentfox.com
202.857.6385