Office of Federal Contract Compliance Programs (OFCCP)
OFCCP Directive
Transmittal Number: 284
DATE: September 5, 2008
OFCCP ORDER NO.: ADM Notice/Other
(Signed)
CHARLES E. JAMES, SR.
Deputy Assistant Secretary for
Federal Contract Compliance
September-5-2008
EMPLOYMENT STANDARDS ADMINISTRATION
U.S. DEPARTMENT OF LABOR
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
WASHINGTON, DC 20210
ADM NOTICE/OTHER
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.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: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.
When reviewing the new Form I-9 during an on-site review, the CO should pay special attention to the following points:
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.
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