Department of Homeland Security Postpones New Form I-9 to April 3, 2009

The Department of Homeland Security (DHS) announced January 30, 2009, it is postponing the proposed February 2, 2009, effective date of the new Form I-9 rule to April 3, 2009. In addition, DHS re-opened the comment period on the proposed new form for 30 days. The public may submit comments on or before March 4, 2009.

The late announcement comes the weekend before the new Form I-9 was to take effect. In postponing the new form, DHS determined that the number of comments they received warranted an extension of the comment period. In addition, the postponement follows the Obama Administration’s policy to review federal regulations that were issued in the waning days of the Bush Administration. This postponement follows DHS’s recent decision to further postpone implementation of a regulation that would have mandated federal contractors to register and use DHS’s E-Verify.

According to the DHS notice, the new Form I-9 will take effect no earlier than April 3, 2009. Until then, employers should continue to use the prior version of the Form I-9 with the annotation “Form I-9 (Rev. 06/05/07) N” on the bottom right-hand corner and the expiration date of June 30, 2009. Employees may continue to present any document listed on this Form I-9’s List of Acceptable Documents.

Jackson Lewis reminds employers that they cannot require specific documents from employees. Under federal law, the employee selects which document(s) he or she wishes to present as part of the I-9 verification process. Violation of this and other Form I-9 requirements may lead to civil rights and criminal penalties.

The Jackson Lewis Global Immigration practice group can help employers implement their I-9 Verifications procedures and processes and respond to DHS audits and worksite investigation inquiries.

Related links:

DHS Federal Register Notice

USCIS Press Release