Today is the first day that the “new” Form I-9 must be used by all U.S. employers. The problem? The new Form I-9 is virtually the same as the “old” Form I-9, but the new Form I-9 disallows an entire segment of the authorized legal work population from using documents they previously used to verify their employment eligibility from now doing so. The USCIS displayed a callous indifference to the ability of thousands of people, legally authorized to work in the United States, to obtain and retain employment.
The Form I-9 was revised as the result of a 1998 change in statute pertaining to employment verification (Yes 10 years ago!). The new Form I-9 fails to account for many situations where people are actually authorized for employment: Nothing in the orm I-9 allows for the work authorization most often used by spouses of U.S. citizens or by investors who have created at least 10 new jobs in the U.S. who are still under the “conditional” status that precedes-sometimes for years-issuance of a full green card. Also omitted is the interim work authorization given by regulation to individuals who are waiting for USCIS to complete its slow process of renewing a work-authorized status. People given haven in the U.S. under Temporary Protected Status (TPS) have no way under the form to document to an employer the automatic extension of work authorization that USCIS declares when TPS designation is extended. The list goes on, and is shockingly long.
These situations are not technicalities. They represent real people with legal, work-authorized status in the U.S. The real shame is that the USCIS has spent a decade trying to develop this form, and still managed to ignore these key issues. While the prior Form also did not account for these situations, guidance and interim measures were developed to cover them. Those measures all appear to go out the same door through which the new form enters. Many thousands of people with the right to work in the U.S. will not be able to document that right, and employers are left with no indication of how to handle these employees.
DHS and USCIS delayed implementation of this form once for 60 days in order to allow for more public comments, but have elected to go forward with the form unchanged notwithstanding significant criticism of the form and its legal inadequacies. The USCIS needs to further defer implementation of this “new” Form I-9 until it can issue a truly useable form with proper instructions. The fact that a one page form, used by all U.S. employers, requires a 65 page “handbook” to fill it out correctly, is yet one more indication of broken immigration system.
