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DHS Issues Rebranded Form I-9

by Bonnie Gibson and Lori S. Melton

The United States Citizenship and Immigration Services (USCIS) and the United States Immigration and Customs Enforcement (ICE) announced on June 21, 2005, that a newly updated version of the Employment Eligibility Verification Form (Form I-9) is now available. The revised form makes no material changes to the I-9 form. It simply deletes references to the former Immigration and Naturalization Service (INS) and the Department of Justice (DOJ), the agency that governed the legacy INS, and substitutes references to the USCIS and ICE, created with the passage of the Homeland Security Act of 2002. USCIS and ICE, divisions of the Department of Homeland Security, now handle the majority of the immigration issues within the United States.

The updated agency names are the only differences between the new I-9 and the version issued on November 21, 1991. The edition date on the new form says (Rev. 05/31/05)Y. Note, however, that Form I-9s with edition dates of (Rev. 05/31/05)N or (Rev. 11/12/91)N in the lower right corner also can be used by employers to fulfill employment verification requirements.

In the press release announcing the publication of the new I-9 Form, DHS confirmed that it is currently working on a substantial revision to the I-9 form, but its issue date is undetermined. A revised form is likely tied up with continuing debate within the Bush Administration over not-yet-published regulations implementing the Electronic and Storage of I-9s, passed in October 2004 and effective April 28, 2005.

The new form I-9 does not modify Section 1 of the I-9 to require an American employee to choose between affirming citizenship or status as a U.S. National. The new form, like the 1991 version, has a single box to check if the employee responds that he or she is a citizen or national of the United States. An I-9 form, distinguishing a U.S. citizen from a U.S. national, was posted earlier this month on the CIS web-site. The change was not authorized and the June form has been taken off the CIS web-site. We anticipate that the change embodied in the deleted Form I-9 will ultimately be adopted, however, as it is a crime to attest falsely to American citizenship and not a crime to attest falsely to being a U.S. national. DHS likely wants to change the form so it can prosecute false claims of citizenship in the future.