The Immigration and Naturalization Service has recently issued an Interim Rule that seeks to implement the Illegal Immigration Reform and Immigrant Responsibility Act's (IIRIRA's) changes to the I-9 employment eligibility verification process. Citing the possibility of "mass confusion" among the employment community, the Interim Rule implements only a limited number of these changes, and promises that a further rule currently being prepared will take full account of IIRIRA's mandates. IIRIRA requires that certificates of naturalization, certificates of citizenship, and foreign passports be eliminated from the number of documents acceptable for establishing an employee's identity and employment eligibility (list A documents), and that United States birth certificates be eliminated from the group of documents acceptable for establishing an employee+s employment eligibility (list C documents).
The highlights of the Interim Rule are the following:
Foreign passports may continue to be used as List A documents, but only if they (a) have a temporary I-551 stamp showing admission for permanent residence, or (b) are accompanied by a Form I-94 indicating a nonimmigrant status (such as L-1 or H-1B) that enables the alien to work for a specific employer. In the latter case, only the employer who petitioned for the alien's nonimmigrant status may use these documents for I-9 purposes.
No change is made to the documents that may be used for List B (documents evidencing identity only) or List C. Contrary to IIRIRA, the Proposed Rule does not eliminate a United States birth certificate as an acceptable List C document.
A new version of Form I-9 is not introduced.
Receipts showing that an application for an acceptable document has been made may continue to be used for I-9 purposes, but only in three circumstances: (1) an application for a replacement of a document has been made (a receipt showing application for initial work authorization or an extension of expiring work authorization is unacceptable); (2) a Form I-94 is presented that bears an I-551 stamp, and has attached a photograph of the alien employee; (3) a form I-94 bearing a refugee admission stamp is presented.
The Service recognizes that its Interim Rule is a short-term measure that is very limited in scope, and stresses that it will not penalize any persons or companies that violate the Interim Rule's provisions. The Service promises, however, that it will take action in the future to implement IIRIRA's provisions with respect to the I-9 employment eligibility verification process, including the removal of foreign passports from List A and United States birth certificates from List C. The Service also leaves open the possibility that nonimmigrant workers permitted to work for specific employers may be required to obtain employment authorization documents (such as Form I-688B or Form I-766) in the future. As noted above, such persons may currently use an appropriately endorsed Form I-94 with a foreign passport for I-9 purposes.