As if it weren’t hard enough for employers to figure out how they are supposed to be doing what many think is the government’s job—figuring out who is here legally and thus who is allowed to work in the U.S.—the USCIS dealt  has them a further blow and added to the ever worsening confusion.  On February 3, 2009, the U.S. Citizenship and Immigration Services (USCIS) announced that it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on Dec. 17, 2008. The rule streamlines the Employment Eligibility Verification (Form I-9) process.  This new interim final rule will amend the regulations governing the types of acceptable identity and employment authorization documents employees may present to their employers for completion of the Form I-9. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. Remember: Employers must complete a Form I-9 for all newly hired employees within three days of hire to verify their identity and authorization to work in the United States.

When making this announcement USCIS noted:   “The delay will provide DHS with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. A notice announcing the delay was transmitted to the Federal Register. In addition, USCIS has reopened the public comment period for 30 days, until March 4, 2009.”

What does this mean for the average employer, the good, compliant employer who on February 2nd began using the “new” I-9 Form and collecting the “new” required documents? It means, unfortunately, more paperwork and more confusion. What should employers who have already begun to use the new I-9 Form do? Should they just toss the new I-9s Forms and redo the employment verification process on the old I-9 Form? Guidance from USCIS would be nice at this time but there is none. However, the conservative “best practices” way to handle this rather unusual situation and to be sure that employers demonstrate full compliance with the I-9 rules is to have the employer maintain the new I-9 Form to demonstrate timely compliance with the rule that states I-9s must be completed within three days of hire, maintain this new I-9 form in the employee’s file, mark it “superseded by new USCIS instructions” and then complete the older I-9 form and maintain such form in the employee’s file. Is this 100% foolproof? Of course not but for now it’s the best we have. When the final USCIS regulations are implemented and the “new” I-9 form is given the green light, employers should begin to use that form. However, for now, employers should return to using the old I-9 form.  Once a final version of the I-9 has gone through the comment period and been approved, hopefully the chaos and confusion will end. For now, however, hold onto your hats as we continue this wild I-9 rollercoaster ride.