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Five “List A” Documents No Longer Acceptable

More than a decade ago, on September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 412(a) of IIRIRA mandated a reduction in the number of documents that employers may accept from newly hired employees during the employment verification process. On September 30, 1997, the former Immigration and Naturalization Service (INS), published an Interim Designation of Acceptable Documents for Employment Verification that implemented the changes required by IIRIRA (the “1997 interim rule”). However, the Form I-9 was not amended at that time to reflect the changes made by the 1997 interim rule. In the supplementary information accompanying the 1997 interim rule, the INS stated it would exercise prosecutorial discretion not to penalize violations resulting from the changes made by that interim rule as a temporary transitional measure until a new Form I-9 was released in the context of a broader final rulemaking. 

According to USCIS, the current revision to Form I-9 is designed to achieve full compliance with the document reduction requirements of the IIRIRA by eliminating five “List A” documents that have been identified as lacking features to deter counterfeiting, tampering and fraud. The five List A documents are:

• Certificate of U.S. Citizenship (Form N-560 or N-570);
• Certificate of Naturalization (Form N-550 or N-570);
• Alien Registration Receipt Card (Form I-151);
• Unexpired Reentry Permit (Form I-327); and
• Unexpired Refugee Travel Document (Form I-571).

Revised List of Acceptable “List A” Documents

In addition to removing five List A documents, the revised Form I-9 also adds the most recent version of the Employment Authorization Document (Form I-766) to List A and consolidates all Employment Authorization Documents with photographs into a single entry. The revised List A for Form I-9 now includes:

• U.S. passport (unexpired or expired);
• Permanent Resident Card (Form I-551);
• Unexpired foreign passport with a temporary I-551 stamp;
• Unexpired Employment Authorization Document containing a photograph (Form I-766, I-688, I-688A, or I-688B);
• Unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer.

Social Security Number Optional

The instructions to the revised Form I-9 indicate that an employee is no longer required to provide a Social Security number on Form I-9, unless the employer participates in E-Verify (formerly known as the Basic Pilot / Employment Eligibility Verification Program).

Non-Discrimination and “Document Abuse”

Employers are reminded that employees may present any List A document, or any combination of any List B and List C documents (these lists remain unchanged), to establish employment authorization. Employers may not specify which documents an employee presents.

Questions

The foregoing is not intended as legal advice. If you have specific questions regarding Form I-9 compliance or the risks associated with national origin claims under Title VII of the Civil Rights Act of 1964, please contact one of our attorneys.