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Coping With An Outdated I-9: Pitfalls & Pointers

by Josie Gonzalez

Today, employers struggle to complete the outdated new-hire I-9 immigration form that contains documents no longer in circulation and fails to include a myriad of commonly used, and more recently issued work authorization documents. The format of the I-9 is also woefully inadequate and triggers confusion regarding how and where to document an applicant's legal status. While awaiting for the release of the new, improved I-9, which was initially announced back in 1997, employers must grapple with the existing form. The following questions and answers will serve both as a primer for the H.R. novice and will also offer pointers for the more seasoned veteran regarding issues primarily related to Section 1 of the I-9, and to "immigrants" vs. "nonimmigrants." Part Two of this article will appear in the next issue and will cover Pitfalls and Pointers for completing Sections 2 and 3 of the I-9, and will review future prospects for a new I-9 form.

Section One of the I-9

1. Which name should be recorded --- the name on the applicant's social security card or the name as it appears on the corresponding work authorization document, such as the alien registration card?

When an immigration audit is conducted, investigators from Immigration and Customs Enforcement ("ICE," the new enforcement agency of the Department of Homeland Security) will request a payroll roster and will expect to see I-9s that correspond alphabetically with that roster. As the social security card is the control document for payroll, it is advisable to maintain I-9s accordingly. However, if one's immigration status is that of a permanent resident, and that I-551 card bears a different name, perhaps a hyphenated name or a former maiden name, it is advisable to annotate the I-9 at the top to also reflect that name. Otherwise, when ICE checks the immigration database under the I-551 alien registration number, the names will not match.

2. Why doesn't the "Lawful Permanent Resident" box provide a space for the expiration of the I-551 ten year card?

Although the ten year I-551 cards were released in 1989, the I-9, issued in late 1991, lacks a space for the expiration date, often triggering confusion by permanent residents who then choose the third entry for "An alien authorized to work until ___ (Alien # or Admission #)" instead of the second line for "permanent residents." Human Resources should ensure that, when presented with proof of permanent residency, the second, not third, entry is completed in Section 1.

3. Are only I-551 permanent resident cards that bear a ten year expiration date acceptable?

No. Permanent resident cards that were issued between approximately 1979 - 1989 do not bear an expiration date, are still valid, and must be accepted. In contrast, the alien registration card, form I-151, listed as an acceptable List A document under item 5 on the reverse side of the I-9, is NOT ACCEPTABLE and was recalled by the Immigration Service in 1994. This card is easily recognizable as the photo is in black and white and presents a frontal, not ¾ view.

In April, 1998, the latest version of the I-551 card was introduced and bears the title "Permanent Resident Card," as opposed to earlier versions entitled "Resident Alien." This new card was designed to better combat document fraud, produced by state-of-the-art technology with a variety of visible and more counterfeit-resistant security features. In spite of these changes, all I-551 cards are equally valid in establishing the cardholder's permanent right to work.

4. Must the ten year expiration date on the permanent resident card be monitored to ensure current validity?

NO. Permanent residents remain work-authorized even if their resident alien cards expire. "If an I-551 card expires during employment, the cardholder remains eligible to work and the current employer is not required to reverify employment eligibility." (U.S. Dept. of Justice, Immigration and Naturalization Service, "Look @it Now," Form I-551B Brochure, 1998.) However, an I-551 that has already expired cannot be used for I-9 purposes at the time of hire; an unrestricted social security card and driver's license are acceptable alternatives.

5. What classification of foreign nationals have work authorization that enables them to complete the third box?

There are a vast number of "non-immigrants," (as contrasted with "immigrants" that are "permanent residents") that are in the U.S. with some type of temporary work authorization. The alphabet soup of non-immigrants who are eligible to receive an employment authorization document ("EAD") is contained in 8 CFR 274a.12 and can be accessed at Some of these individuals receive an EAD that provides for employment with any employer, while others receive employment restricted to the sponsoring employer. Examples of the former, i.e., those who can work for anyone, are K-1 fiancé(s); certain aliens who have filed for permanent resident status with pending applications; aliens granted Temporary Protected Status (TPS) such as qualifying El Salvadorans; and students who have completed their academic studies and have been granted post completion Practical Training EADS which are usually valid for one year. Examples of individuals whose employment is restricted to a specific employer include degreed professionals in H-1B status, L-1 intracompany transferees, E-1 & E-2 treaty nationals, and TN professionals admitted under the North American Free Trade Agreement.

6. Are refugees and asylees considered permanent residents or non-immigrants authorized to work temporarily?

These aliens are hybrids and clearly deserve an entry of their own on the I-9. Although they have not achieved permanent resident status, they have permanent, not temporary, work authorization. The Social Security office will grant them an unrestricted card. An INS memorandum issued on March 10, 2003 clarifies that aliens who have been granted asylum are authorized to work in the United States whether or not they have obtained an employment authorization document such as EAD forms I-766 or I-688B. Thus, it is appropriate for an asylee to complete the third box but enter "not applicable," for an expiration date, and present evidence of this status under 8 CFR 274a.12(a)(3) or (a)(4).

7. If a mistake is made in the completion of Section 1, what corrective action should be taken?

Section 1 is to be completed by the employee. If there are any omissions or mistakes, the employee should amend it. Information should not be blacked out, nor should "white out" be used. Instead, a single line should be drawn through any incorrect entry, the new information recorded, accompanied by the employee's initials and the current date. Likewise, information initially omitted and later inserted by the employee should be acknowledged by initials and date.

Sections Two And Three Of The I-9

1. Must one record the document in Section 2 that corresponds to the box checked in Section 1? In other words, if an applicant checks the permanent resident box, may one insist on presentation of the resident alien card?

No. One may not insist on seeing specific documents as long as the items presented satisfy the I-9 requirements --- any document from List A establishing identity and work authorization; or any document from List B establishing identity, and any work authorization document from List C.

2. If an applicant records an expiration date in Section 1 but doesn't present the document that verifies that expiration date, must an employer nevertheless docket that date in order to ensure continued right to work?

Yes. If information is recorded on the I-9 that puts the employer on notice that work authorization is limited, the employer must track that date and follow-up with a request from the applicant for evidence establishing the employee's continued right to work.

3. Why does List A contain double entries for the document title and expiration date?

When a foreign passport is presented, one records both the titles and expiration dates of the passport and of any work authorization. Examples of the latter are an I-94 entry card for a work-authorized applicant (e.g. H-1B, TN, E-1/2 or L-1), or an I-551 stamp in the passport, which is temporary proof of permanent residency.

4. Is it necessary to track all documents with expiration dates?

No: only those that provide temporary work authorization. There is no need to track Permanent Resident cards, U.S. Passports or any List B documents.

5. Can restricted Social Security Cards be used for I-9 purposes?

No. Individuals with temporary work authorization are issued restricted social security cards that indicate: "Not valid without INS work authorization." An employer may not accept a restricted social security card as evidence of work authorization for List C.

6. Have there been any changes to the List of Acceptable Documents or have new documents been introduced?

Yes, there have been several changes:

Documents Eliminated:

  • Form I-151 - the original black and white Permanent Resident Card with a frontal photo is no longer a valid List A document
  • Four documents were removed from List A in an interim rule published in 1997: Certificate of US Citizenship (List A #2), Certificate of Naturalization (List A #3), Unexpired Reentry Permit (List A #8), and Unexpired Refugee Travel Document (List A #9). However, until a new I-9 is introduced, compliance with the elimination of these four documents will not be enforced.
New Documents:
  • Form I-766, Employment Authorization Document, was added in 1997 as a new List A document.
  • Effective May 2004, citizens of the Republic of the Marshall Islands (RMI) can present an unexpired RMI passport with unexpired documentation showing admission under the Compact of Free Association (CFA) as proof of work authorization.
  • Effective July 2004, citizens of the Federated States of Micronesia (FSM) can present an unexpired FSM passport with unexpired documentation showing admission under the CFA as proof of work authorization.
Beginning June 28, 2004, a foreign passport may contain a new Machine Readable Immigrant Visa (MRIV), issued by U.S. Embassies and Consulates, that states: "UPON ENDORSEMENT SERVES AS TEMPORARY I-551 EVIDENCING PERMANENT RESIDENCE FOR 1 YEAR" immediately below the bearer's photo. The "endorsement" is made by a DHS officer upon the alien's arrival to the U.S. at an airport or other port of entry. The DHS officer will then place an admission stamp on the upper portion of the MRIV. (Because the I-551 stamp and this new stamp are only "temporary" evidence of permanent residence, they are valid just until the indicated expiration date, which is generally one year, and the I-9 should be updated prior to the expiration date.)
7. May the busy HR Manager segregate the task of viewing the actual documents from the I-9 completion responsibility?

No. The person that signs the attestation in Section 2 must be the same person who views the original of the documents and compares the photo or other identifying information of the employee to establish an "identity" match. If hiring is occurring away from the home office, one can delegate the task of I-9 completion to any third party, who will serve as the employer's agent.

8. How does one record multiple work authorization updates in Section 3?

One may complete both Sections 1 and 2 of a new I-9 or simply write the name of the employee in Section 1 of a new I-9 and complete Section 3 for each update. In either case, maintain all I-9s together; do not discard the original I-9.

9. What improvements might a new I-9 contain, and is there any projected release date?

Based on USCIS comments at the time of the announcement that a new, improved I-9 would be released, we might see the following new features: an updated list of documents; the elimination of some of the currently used documents; in lieu of a check mark next to the three boxes in Section 1, the employee would write his initials; a more user friendly format with bolder fonts and accents; and a revised Section 3 that provides for multiple updates. Currently, the Employer Liaison Unit of USCIS doesn't expect the release of a new I-9 this calendar year, and can't offer a projected release date.

In conclusion, because the I-9 is so outdated and the list of acceptable documents has substantially changed over the years, when presented with unfamiliar documents, don't hastily conclude that the new hire has fraudulent or counterfeit documents. Information regarding the release of new documents is available at Good faith compliance, not strict liability, is the new legal standard. Before any fine can be assessed, ICE, the new immigration enforcement agency, must provide a Notice of Deficiency with a ten day opportunity to cure procedural or technical I-9 violations which occurred after September 30, 1996. (IRAIRA 411:INA 274A(b)(6), 8 USC 1324a(b)(6), as amended)

About The Author

Josie Gonzalez is the managing attorney of Gonzalez & Harris, a Los Angeles based immigration law firm that represents employers in all aspects of immigration law. She has testified twice in Washington, D.C. regarding the impact of U.S. immigration laws on the business community, and is a frequent commentator on agency regulatory activities. She served for nearly ten years on AILA's Board of Governors; has contributed as Chair, Co-Chair & member of various national liaison committees; has authored numerous articles for legal and trade journals; and served as Editor-in Chief for the David Stanton Manual on Labor Certification (1998). In 1999, she was recognized by AILA for "Excellence in Advancing the Practice of Immigration Law". Ms. Gonzalez is a frequent guest speaker to many trade and business organizations including PIHRA, the California Restaurant Association, the Employers Group, and the Employer Advisory Council. Ms. Gonzalez has been selected by her peers for inclusion in the inaugural issue of Southern California Super Lawyers®, and for over 10 years in The Best Lawyers in America.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.