Expired Identity, Work Eligibility Papers Unacceptable

By J.J. Smith Dec 18, 2008

Starting Feb. 2, 2009, expired credentials will no longer be acceptable to establish the identi​ty or work eligibility of new hires, the U.S. government says.

Under U.S. law, newly-hired employees must attest to being a U.S. citizen or national, a lawful permanent resident, or an alien authorized to work in the United States and present a document—or a combination of documents—designated as acceptable for establishing identity and employment authorization. As part of the verification process, employers must examine the documents and complete the Department of Homeland Security’s (DHS) Form I-9, “Employment Eligibility Verification,” attesting that the documents appear to be genuine and relate to the individual presenting the credentials.

On Dec. 17, 2008, DHS’ United States Citizenship and Immigration Services (USCIS) posted an “interim final rule” in the Federal Register making changes to Form I-9, and reducing the documents employers can accept to satisfy the form’s requirements. Employers can continue to use the current version of Form I-9, dated June 5, 2007, until the new Form I-9 and its requirements become effective Feb. 2, 2009, according to the USCIS.

In addition to the interim final rule narrowing the list of identity documents employers can accept from new hires, it also directs that expired documents are no longer acceptable forms of identification, USCIS says. “An expansive document list [that includes expired documents] makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process,” USCIS says.

“Expired documents are prone to fraudulent use in the Form I-9 process by aliens seeking unauthorized employment,” USCIS says. Expired documents have made it into the hands of counterfeiters who will place an unauthorized alien’s photograph and other identifying information on the document, which the unauthorized aliens use to obtain employment, the agency says. Therefore, establishing a requirement that all documents must be unexpired closes that loophole and “sets a bright-line standard for U.S. employers,” the USCIS says. Moreover, requiring unexpired identity credentials respects the limits placed on the document by the issuing authorities and increases the “likelihood that such documents will contain up-to-date security features that will make them less vulnerable to counterfeiting and fraud,” USCIS says.

In addition to no longer accepting identity credentials that have expired, the interim final rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) as acceptable documents. These documents are no longer produced and all Forms I-688, I-688A, and I-688B still in circulation have expired.

New Documents Added

The interim final rule adds new documents that meet Form I-9 requirements for its three list categories. Those documents are foreign passports containing the I-551 permanent residence notation printed on a machine-readable immigrant visa; passports and certain other documents for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands; and the new U.S. Passport Card.

Form I-9’s three list categories of acceptable documents, either alone or in combinations, to establish identity and employment authorization are categorized under lists A, B and C. The identity and work eligibility documents acceptable under each list are:

List A—documents that establish both identity and employment authorization such as a U.S. passport, U.S. Form I-551, “Permanent Resident Card” and U.S. Form I-766, “Employment Authorization Document.”

List B—documents that establish only identity such as a state-issued driver’s license or identification card.

List C—documents that establish only employment authorization such as a state-issued birth certificate or Social Security card.

A new hire must present one document from List A or one document each from List B and List C, USCIS says. In addition, if the new hire cannot present a document from one of the three lists because it was lost or stolen, and the employee has filed for replacement documents, the individual is allowed to provide proof—in the form of a “receipt”—that replacements are being sought. The receipt satisfies the document presentation requirement for 90 days; then the employee must present the actual document or other documents specified in the regulation.

If the employee is an alien whose employment authorization or work authorization documentation has expired or is near expiring, the employer must reverify the employee’s continued employment authorization by requesting unexpired work authorization documents from the employee, USCIS says.

USCIS is accepting comments on the interim final rule through Feb. 2, 2009. All comments must include Department of Homeland Security Docket No. USCIS-2008-0001. Comments can be filed electronically, by U.S. Postal Service or by courier.

To file comments electronically, go to the Federal eRulemaking Portal at http://www.regulations.gov and follow the instructions for submitting comments.

The address to file paper, disk or CD-ROM comments by U.S. Postal Service or by courier is Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Ave. NW, Suite 3008, Washington, DC 20529-2210.

J.J. Smith is an online editor/manager for SHRM.

Related Resource:

Documents Acceptable for Employment Eligibility Verification, Federal Register Notice


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