The Dept. of Homeland Security recently issued a new Employment Eligibility Verification Form (Form I-9), which eliminates the outdated references to the former Immigration and Naturalization Service (INS) and its parent agency, the U.S. Dept. of Justice.  The INS’s successor agency, U.S. Citizenship and Immigration Services (CIS), currently is revising its forms, including the I‑9, to reflect the fact that the functions it performs have been transferred to the Dept. of Homeland Security (DHS).

     Aside from replacing references to the Dept. of Justice and the former INS with references to the DHS and its components, the new edition of the I-9 is virtually identical to the version issued on Nov. 21, 1991.  The edition date on the revised form reads “(Rev. 05/31/05)Y.”

     However, the revised I-9 that was first issued on May 31, 2005, contained an inadvertent change to Section One of the form, which employees are required to complete.  The 1991 edition of the I-9 provided employees with the choice of selecting one of three boxes to identify the status that renders them authorized to work in the U.S.  The first of these boxes allows an employee to identify him/herself as a “citizen or national of the United States.”  The revised I-9 form changed this first box by creating two choices:  “citizen of the United States,” or “national of the United States.”  

     On June 15, 2005, NILC staff attended a meeting hosted by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in which a CIS representative said that this was a mistake.  The only approved change to the I-9 form was replacing the old references to the INS and the Dept of Justice.  The DHS has since corrected this mistake, and on June 21, 2005, it issued a press release about the new I‑9, although the statement is silent as to this inadvertent mistake, which is likely to cause confusion among employers who happen to have downloaded the version published on May 31.  The DHS news release can be viewed at http://uscis.gov/graphics/publicaffairs/newsrels/i-9_050621.pdf.

     Employers may meet their employment eligibility verification requirements under the law by completing an I-9 form for each new employee that has an edition date of either “(Rev. 5/31/05)Y,” “(Rev. 05/31/05)N,” or  “(Rev. 11/21/91)N” in the lower right corner of the form.

     The DHS is currently in the process of making substantive changes to the I-9 form, and this inadvertent mistake is a good example of the changes that can be expected.  In the meantime, it is important for advocates to remember that an employee completing the I-9 process must always be allowed to choose which employment eligibility verification documents to provide to an employer, as long as they are in compliance with the legal requirements specified on the back of the I-9 form.  Employers may not request from employees specific documents or more documents than what is legally allowable under the I-9 process.  For assistance on specific cases, call the OSC’s worker hotline at 1-800-255-7688, or 202-616-5525, or 1-800-237-2515 (TDD for the hearing impaired).  Advocates can also contact NILC for technical assistance on this issue.

By Marielena Hincapié, NILC program director & staff attorney