The Department of Homeland Security (DHS) published the 2007 revised I-9 Form in the Federal Register on November 26, 2007, which means employers must be in compliance by December 26. 2007. Additionally, DHS has sought a stay in the lawsuit involving the recently issued Social Security Number no-match regulation.
Revised I-9 Form Published; Employers Must Be in Compliance by December 26, 2007
The Department of Homeland Security (DHS) published the 2007 revised I-9 Form in the Federal Register on November 26, 2007. Accordingly, although DHS has indicated that it will not seek penalties against an employer for using a previous version of the form on or before December 26, 2007, after that date employers must use the revised form or face potential penalties for noncompliance.
As noted in our prior Legal Alert, the revised form eliminates 5 documents from List A of the List of Acceptable Documents. We encourage all employers to begin using the new form immediately. The revised form is available from the USCIS web site at: http://www.uscis.gov/i-9. The government has also revised the Handbook for Employers, Instructions for Completing the Form I-9, which can be downloaded from the USCIS web site at: http://www.uscis.gov/files/nativedocuments/m-274.pdf.
DHS Plans Additional Rulemaking Proceedings Regarding No-Match Regulation
DHS recently asked a federal court in California to stay proceedings in an action challenging its recently issued regulation regarding Social Security Number no-match letters, so that the agency can conduct additional rulemaking proceedings. According to a motion filed by DHS, the agency plans to conduct additional rulemaking proceedings to address the issues raised by the court in its October 2007 order barring DHS from implementing or enforcing the regulation. These proceedings will include conducting a Regulatory Flexibility Act analysis. DHS has requested a stay until March 2008 or until an amended final rule is issued, whichever occurs first.
At this point, the court has not ruled on the motion for continuance; thus, the injunction continues in force. Accordingly, while the new regulation’s 90-day time period for resolving SSN mismatches currently is not in effect, employers are still required, as they have always been, to respond to no-match letters in a reasonable manner.
Although DHS has not provided any clarification regarding what steps an employer should take in response to a no-match letter, employers should, at the very least, notify affected employees of the mismatch and follow up with these employees in a timely manner to ensure that the mismatch has been resolved. Employers should also document the steps they take to ensure the mismatch has been resolved. If the mismatch is not resolved, the employee’s work authorization may be in question.
We will continue to update you on the status of this regulation and any additional rulemaking proceedings by DHS. If you have any questions regarding the revised I-9 form or the no-match regulation, please contact Geetha Nadiminti at gnadiminti@fordharrison.com or 404-888-3940, or any member of Ford & Harrison’s Business Immigration practice group.