Office of Federal Contract Compliance Programs (OFCCP)

Printer-Friendly Version

OFCCP Directive

Transmittal Number: 284
DATE: September 5, 2008
OFCCP ORDER NO.: ADM Notice/Other

1. SUBJECT: The U.S. Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services' (USCIS), revised Employment Eligibility Verification Form (Form I-9).
   
2. PURPOSE: To transmit the revised Form I-9 and the procedures for inspection of the Form I-9 while conducting the onsite phase of a compliance evaluation.
   
3. FILING INSTRUCTIONS:
   Holders of ADM and LEG Binders only: File this Notice with the attachment behind the "Other" tab in your Administrative Practices Binder.
   District and Area Office EOSs and EOAs only:
   File this Notice with the attachment behind the tab for ADM Directives in your FCCM Binder.
4. OBSOLETE DATA: None.
5. DISTRIBUTION: A, B (both hard copy and electronically); C (hard copy only).
6. EXPIRATION DATE:This directive remains in effect until superseded.

(Signed)
CHARLES E. JAMES, SR.
Deputy Assistant Secretary for
Federal Contract Compliance
September-5-2008

ADM NOTICE/OTHER

1. SUBJECT: The U.S. Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services' (USCIS), revised Employment Eligibility Verification Form (Form I-9).
2. PURPOSE: To transmit the revised Form I-9 and the procedures for inspection of the Form I-9 when conducting the onsite phase of a compliance evaluation.
3. BACKGROUND: The Immigration Reform and Control Act of 1986 (IRCA) and supporting regulations require all U.S. employers to verify the identity and employment eligibility of all individuals hired to work in the United States and to complete and retain a Form I-9 for each employee. Employers are required to authenticate the identity of each new hire by reviewing a government-issued photographic document from "List B," such as a driver's license. In addition, employers are required to establish each new hire's employment eligibility by reviewing documents on "List C," such as a social security card or birth certificate. Alternatively, employers may establish both an individual's identity and employment eligibility if presented with a document from "List A," such as a U.S. passport or permanent resident card.
   In accordance with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), P.L. 104-208, USCIS has revised the Form I-9. The most significant change to the Form I-9 is a reduction in the number acceptable documents on List A, documents which establish both identity and employment eligibility. Employers are required to use the revised Form I-9, labeled "(Rev. 06/05/07)N," for all individuals hired on or after November 7, 2007.⁽¹⁾
   Under the longstanding Memorandum of Understanding (MOU) between the Immigration and Naturalization Service (now USCIS) and the Employment Standards Administration (ESA), Office of Federal Contract Compliance Programs (OFCCP) is authorized to inspect the Form I-9 of federal contractors or subcontractors whenever an onsite review is performed during a compliance evaluation. To avoid discouraging unauthorized workers from reporting alleged discrimination, the MOU specifies that Form I-9 inspections will not take place in the course of any complaint investigation. The MOU may be found at: http://www.nilc.org/immsemplymnt/emprights/MOU.pdf.

   ---

   1/According to USCIS, the period between Nov. 7 and Dec. 26, 2007 was a grace period, with no enforcement of the new form or the changes.

   On June 9, 2008, Executive Order (E.O.) 12989 was amended to require, as a condition of future contracts, that federal contractors use an electronic verification system to confirm the employment eligibility of new hires and existing personnel assigned to perform work on the new federal contract.⁽²⁾ DHS is authorized to issue implementing regulations for E.O. 12989, but has not yet done so. Once implementing regulations are issued, this Directive may be revised to reflect any necessary changes to OFCCP's Form I-9 inspection procedures.

4. POLICY: Effective immediately, all Form I-9 inspections performed onsite review will adhere to the procedures outlined in this directive.

5. FORM I-9 (Rev. 06/05/07)N: On November 7, 2007, the Form I-9 with a revision date of June 5, 2007 became the only version of the form valid for current or future use.⁽³⁾ The revision date is printed on the lower right-hand corner of the form and states "(Rev. 06/05/07)N." The new Handbook for Employers - Instructions for Completing the Revised Form I-9 is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf.
   The most significant change to the revised Form I-9 is the elimination of five documents from "List A" of the "Lists of Acceptable Documents." List A specifies the documents that can be used to establish both identity and employment eligibility. The five documents that have been eliminated are:
   • Certificate of U.S. Citizenship (Forms N-560 or N-561)
   • Certificate of Naturalization (Forms N-550 or N-570)
   • Alien Registration Receipt Card (Form I-151)
   • Unexpired Reentry Permit (Form I-327)
   • Unexpired Refugee Travel Document (Form I-571)

   ---

   2/The amended E.O. can be found at 73 FR 33283 (June 11, 2008). Pursuant to the E.O., on June 13 2008, the Secretary of DHS designated the E-Verify system as the electronic verification systems that contractors will be required to use. See 73 FR 33837.

   3/According to a November 26, 2007, Federal Register Notice published by the U.S. Department of Homeland Security (DHS) (See 72 FR 65974), and available on the USCIS web site at http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=696497753ff8dcfef5a0e6e47215bfa8 , DHS said it would not seek penalties against an employer for using a previous version of Form I-9 on or before December 26, 2007.

   One document was added to List A of the List of Acceptable Documents:
   • Unexpired Employment Authorization Document (Form I-766)

   In addition, all Employment Authorization Documents with photographs have been consolidated as one item on List A:
   • Temporary Resident Card (Form I-688)
   • Employment Authorization Card (Forms I-688A, I-688B)
   • Unexpired Employment Authorization Document (Form I-766)

   Instructions regarding Section 1 of Form I-9 currently state that the employee is not obligated to provide his or her social security number in Section 1 of the Form I-9, unless he or she is employed by an employer that participates in E Verify.⁽⁴⁾ Further information on E Verify is available on the USCIS web site at http://www.uscis.gov/e-verify.

   Form I-9 is available in English or Spanish. However, only employers in Puerto Rico have the option of using either the Spanish or English version of the new Form I-9 to verify employment eligibility. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete and retain the English version.

   Pursuant to Federal law, employers are permitted to sign and retain Form I-9 electronically. Public Law 108 390, 11 Stat. 2242 (October 30, 2004)⁽⁵⁾ . However, each electronically generated Form I-9 must be legible. No change may be made to the name, content, or sequence of the data elements and instructions. No additional data elements or language may be inserted.

   Form I-9 must be made available for inspection in their original form, on microfilm, microfiche, or electronically to authorized officials, such as an OFCCP CO. Employers must be given at least three days advance notice before the inspection. Original documents, as opposed to photocopies, may be requested.

   ---

   4/This may change when DHS issues regulations implementing E.O. 12989.

   5/The regulation implementing Public Law 108-390, Title 8 CFR Part 274a.2(a)(2), is available on the USCIS web site at http://www.uscis.gov/propub/propubvap.jsp?dockey=52234e082b7c3b75fbfbd309b45267e4.

6. INSPECTION PROCEDURES: OFCCP COs shall continue to fill out Form ESA-91 according to the instructions provided in OFCCP Order No. ADM 02-2/FORMS, Transmittal 253, signed by the Deputy Assistant Secretary on March 14, 2002. This form, with instructions, is located in the Case Management System 2.5 The ESA-91 (I-9 Verification) Module.

   When reviewing the new Form I-9 during an on-site review, the CO should pay special attention to the following points:

   1. Contractors must use the new Form I-9, labeled (Rev. 06/05/07)N, for all employees hired, rehired, or reverified after November 7, 2007.⁽⁶⁾
   2. The CO must make certain that any electronically reproduced or retrieved Form I-9 is legible and has no evidence of inserts or changes made to the name, content, or sequence of the data elements.
   3. The CO may request that the contractor retrieve and reproduce Form I-9 and supporting documentation that are electronically stored. To ensure that retrieved and reproduced documents are free of tampering, the inspecting CO may ask for the associated audit trails that show who has access to the computer system and the actions performed within or on the computer system during a given period of time.
   4. The CO may also request that the contractor provide appropriate hardware and software, personnel, and documentation necessary to locate, retrieve, read, and reproduce any electronically stored Form I-9, supporting documents, and their associated audit trails, reports, and other data used to maintain the authenticity, integrity and reliability of the records.
   5. ontractors are obligated to provide, if requested, any reasonably available or obtainable electronic summary file(s), such as a spreadsheet containing all the information fields on all the electronically stored Form I-9. The CO should request such summary file(s) and use them to select specific Form I-9 when they inspect the electronically retained documents.

   ---

   6/According to USCIS, the period between Nov. 7 and Dec. 26, 2007 was a grace period, with no enforcement of the new form or the changes.

(Signed)
CHARLES E. JAMES, SR.
Deputy Assistant Secretary for
Federal Contract Compliance
September-5-2008

Attachments

• Revised Form I-9 (English) - Also available on line at http://www.uscis.gov/i-9.

• Revised Form I-9 (Spanish) - Also available on line at http://www.uscis.gov/i-9.

• Fact Sheet "USCIS Revises Employment Eligibility Verification Form I-9" Also available on line at http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf.