USCIS’s latest rules governing the I-9 process just recently came into final force on May 16, 2011. As part of the rule-making process, USCIS was required to release the rules in draft form, receive comments from the public, and then revise the rules accordingly. For each comment that USCIS did not incorporate into its revised rule, it was required to provide an explanation of why it put the comment aside. From reviewing USCIS’s responses to the issues raised with its proposed I-9 rule, we may be able to get a sense of the agency’s current thinking on the I-9 process.
Several commenters used the occasion of USCIS rulemaking to state that USCIS should be more flexible in what it accepts for I-9 purposes because of the extended length of time it takes USCIS to act on various filings. Employers know very well, for example, that long periods of waiting for USCIS to adjudicate nonimmigrant extension petitions can lead to a need to update foreign nationals’ employment records several times in a short period. Thus, some commenters requested that USCIS accept receipt notices for I-9 purposes. USCIS responded by saying that it does accept receipt notices up to a period of 90 days, but only if the original document authorizing employment was lost, stolen, or damaged. USCIS makes it very clear that a failure to account for its processing times does not relieve an employer of its obligations under the I-9 regulations.
Perhaps the most contentious issue raised by commenters on the new I-9 rule is the fact that the rule prohibits the use of all expired documents for I-9 purposes. USCIS mentioned its principal objection to the use of expired documents in the I-9 process seems to be that this can facilitate fraud, or even terrorism. It may be helpful to remember that while I-9 forms may be seen in your business as an annoyance at best, U.S. government officials see them as a first-line defense to identity fraud and even national security threats.
In the end, USCIS adopted its proposed I-9 regulations without change from the earlier versions. It is clear from USCIS’s treatment of the comments on the new I-9 regulations that while USCIS does publish material to help employers with the complex I-9 process, ultimately it keeps itself at arm’s length from both employers and employees. During the I-9 process, it can pay to remember that employers and the government have very different priorities, and that in the end, you are responsible for your own I-9 compliance.
I-9 compliance rules and regulations aren’t always straightforward and can be quite confusing. Pre-employ.com, parent company to I-9Compliance.com, offers free i-9 compliance to thousands of companies nationwide. Companies large and small are encouraged to get a free analysis of their current processes to ensure compliance here: http://www.pre-employ.com/quote.