The Status of the New “No-Match” Regulations and a New Form I-9

The impact of the new regulations creating a safe harbor for employers who receive “no-match” letters from the Social Security Administration (the “No-Match” regulations) will not be felt for awhile. In anticipation of the publication of these regulations in the Federal Register, the  American Civil Liberties Union (ACLU) and other critics of the law were concerned that following the safe harbor procedures laid out in the  regulations would encourage employers to discriminate against  employees and would make those employers the targets of increased employment discrimination lawsuits. There were also expected legal  challenges focused on whether the Department of Homeland Security  (DHS) has the authority to promulgate regulations affecting social   security law.

A lawsuit was filed by the ACLU in the U.S. District Court for the  Northern District of California and a temporary injunction was ordered  delaying the implementation of the “No-Match” regulations.Since that time, the district court has granted a stay of the proceedings for a permanent injunction until March 1, 2008 pursuant to a motion by  DHS promising to revise the regulations to address the concerns of the  district court and the grounds upon which the injunction was based.

DHS also recently took the step of appealing the district court’s  temporary injunction to the Ninth Circuit Court of Appeals. DHS  Secretary Michael Chertoff said “[b]y pursuing these two paths  simultaneously, [DHS’] aim is to get a resolution as quickly as possible  so we can move the No-Match Rule forward and provide honest  employers with the guidance they need.”

Until then, an employer’s response to a “no-match” letter will continue to be unprescribed and the employer is left to take steps it deems  reasonable under the circumstances. That continues to result in an  arbitrary attempt to strike a balance between avoiding (1) liability for  knowingly (actually or constructively) employing someone unauthorized  to work in the United States and (2) liability for employment  discrimination.

The New Form I-9

Introduction

Effective immediately the new version of the Form I-9 must be used by employers. The new form can be accessed at www.uscis.gov/files /form/I-9.pdf. The transition period for implementation of the new Form  I-9 ends on December 26, 2007. After that date employers will be  subject to fines if employment authorization verification for new hires is  not done using the new form.

Primary Changes to the Form I-9

• The Certificate of United States Citizenship (Form N-560 or N-561);
• the Certificate of Naturalization (Form N-550 or N-570);
• the Form I-151, a long out-of-date version of the Alien Registration Receipt Card (“green card”);
• the Unexpired Reentry Permit (Form I-327); and
• the Unexpired Refugee Travel Document (Form 1-571).

The amended Form I-9 retains four types of acceptable List A  documents:

• The U.S. Passport (unexpired or expired);
• the Permanent Resident Card or Alien Registration Receipt Card  (Form I- 551);
• an unexpired foreign passport with a temporary I-551 stamp; and
• an unexpired Employment Authorization Document that contains a  photograph (Form I-766, I-688, I-688A, I-688B).

All of these acceptable List A documents were carried over from the previous Form I-9, with the exception of the Form I-766, which is a new addition to List A. The amended Form I-9 also modifies one  acceptable List A document. The List A document entitled, “unexpired foreign passport with an attached Form I-94 indicating unexpired  employment authorization,” has been replaced by “an unexpired foreign passport with an unexpired Arrival-Departure Record, Form I- 94,  bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, if that status  authorizes the alien to work for the employer.”

USCIS also has amended the order and organization of List A. For  example, the various Employment Authorization Documents are listed  together as one category, and the unexpired foreign passport with temporary I-551 stamp is a separate entry from the unexpired passport with Form I-94 indicating an employer-specific work-authorized   nonimmigrant status.

This updating of List A on the Form I-9 should help streamline the hiring process by providing employers with a better means of conforming their document acceptance practices with the requirements old  regulations with which the Form I-9 never conformed. List A on the newly amended Form I-9 has been the regulatory List A since 1997,  and, therefore, employers should not have been accepting documents  not included in the regulatory list.

Given the discrepancy between the Form I-9 and the regulations,  however, the INS and, subsequently DHS, withheld enforcement of civil  money penalties for violations associated with the changes made by  the 1997 interim rule as a temporary transitional measure. With an  amended Form I-9 now available that includes the correct List A, that policy is no longer necessary. Therefore, DHS has determined that the non-enforcement policy will cease as of December 26, 2007.

Other Changes to the Form I-9

The amended Form I-9 now instructs employees that providing their Social Security number in Section 1 of the form is voluntary. However, employees must provide their Social Security number in section 1 of the form if their employer participates in E-Verify (the employment eligibility verification program formerly known as Basic Pilot or EEV). Moreover, for employees who present their Social Security account number card to their employer as evidence that they are authorized to work in the United States, the employer must record the Social Security Account number in section 2 of the Form I-9.

The amended Form I-9 also includes various nonsubstantive changes to the organization and content of the form instructions to be more consistent with standard USCIS branding practices, such as including a clarification that there is no filing fee associated with the Form I-9.