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New I-9 Form and Interim Final Rule Set to Take Effect on April 3, 2009
On April 3, a USCIS interim final rule that revises the list of documents employers may accept to verify a worker's identity and employment authorization goes into effect. On that date, employers must begin using the new, February 2, 2009 edition of Form I-9. Until April 3, employers should continue to use the June 5, 2007 edition of Form I-9. Both editions are available at http://www.uscis.gov/i-9.
The new Form I-9 and rule were initially scheduled to take effect on February 2, 2009. The Obama Administration postponed the implementation as part of its broad review of regulations that were first introduced by the Bush Administration. While further postponement is possible, employers should prepare to use the new I-9 as scheduled on April 3.
USCIS has also released a new, April 3, 2009 version of the Handbook for Employers, Instructions for Completing the Form I-9 (Employment Eligibility Verification Form). It shows changes to the list of approved documents that employees can present to verify their identity and now includes visual samples of these documents. The previous, November 1, 2007, version of the Handbook should be used until April 3.
For more information on the key I-9 changes, see the January 2009 issue of Enforcement Advisor. |
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U.S. District Court Overturns Illinois Provision Restricting Employers from Using E-Verify
The U.S. District Court for the Central District of Illinois recently overturned an Illinois provision that prohibited employers in the state from enrolling in E-Verify until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative non-confirmation notices issued to employers within three days. Employers that check the employment eligibility of their new hires through E-Verify receive either confirmation that the person is authorized to work in the U.S. or a tentative non-confirmation notice stating the system cannot confirm whether the person is so authorized. When employers receive a tentative non-confirmation notice, they must notify the worker who may follow up with U.S. Citizenship & Immigration Services (USCIS) or the SSA, which must issue a final determination within 10 days.
Presiding Judge Jeanne E. Scott granted the U.S. government's motion for summary judgment, declaring that the Illinois provision - Section 12(a) of Illinois Public Act - is invalid under the Supremacy Clause of the U.S. Constitution because it conflicts with the federal Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA). The judge permanently enjoined the State of Illinois from enforcing the invalidated provision.
The other Illinois restrictions that were not actually challenged in the lawsuit are presumed to remain in effect. They include the following:
1. The employer is prohibited from using E-Verify to confirm the employment authorization of new hires unless it attests, under penalty of perjury and on a special form created by the Illinois Department of Labor, that it has met five special requirements, including posting a notice from DHS that the employer is enrolled in E-Verify.
2. The employer must inform all prospective employees at the time of their employment application that E-Verify may be used for immigration enforcement purposes.
3. The employer must provide all employees who receive a tentative non-confirmation of their employment eligibility with a referral letter and contact information for what agency the employee must contact to resolve the discrepancy.
4. The employer is restricted from using the information they receive from SSA or DHS for any purpose other than to confirm the employment eligibility of new hires after completion of Form I-9.
5. No local government unit, including a home rule unit, may require any employer to use E-Verify, including under the following circumstances: (1) as a condition of receiving a government contract; (2) as a condition of receiving a business license; or (3) as a penalty for violating licensing or other similar laws.
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H-1B Visa Quota for FY 2010 Opens April 1, 2009
On April 1, USCIS begins accepting Form I-129 (H-1B) petitions subject to the cap quota for fiscal year 2010, which starts on October 1, 2009. H-1Bs that can be issued for new employment in the fiscal year is capped at 65,000. There is also a separate quota of 20,000 H-1Bs for foreign nationals with U.S. masters or higher degrees.
In 2008, both quotas were reached on the first day that USCIS began accepting petitions. This year, it may take longer for the quotas to be reached due to the economic downturn and rising unemployment in the U.S. If the USCIS receives enough petitions to reach the quotas on April 1 or on any of the four subsequent business days, it will conduct a random selection "lottery." The USCIS will announce if and when a lottery is needed.
There is a new, March 11, 2009 version of Form I-129, which contains a question asking whether the employer has received funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act. While USCIS will not require use of the revised form for fiscal year 2010, it urges employers using the previous, January 2009 version to complete page 13 in the revised version of Form I-129 containing the new question and to file this single page with the prepared package.
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