(February 2, 2009) A federal agency has delayed until April 3 the use of the updated I-9 form for verifying the eligibility of applicants for employment.

Late on January 29, the U.S. Citizenship and Immigration Services (USCIS) announced that the new I9 form will be delayed until April 3. The California Chamber of Commerce is recommending that until then, the current form with the 06/05/07 revision date should be used.

The USCIS announcement appears to be in keeping with the memorandum issued by President Barack Obama's chief of staff, Rahm Emanuel, on January 20, directing all federal agencies, to put a freeze on any federal regulations not yet published in the Federal Register and recommending a 60-day hold. 

The Department of Homeland Security and USCIS had already issued the new I-9 form and had labeled it to take effect on February 2 before the USCIS announcement.

Purpose of I-9 Form

All U.S. employers are responsible for completing and retaining the I-9 form for each individual they hire for employment in the United States, both citizens and non-citizens. On the I-9 form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information.

If employers comply with the verification requirements when hiring the individual but later discover that the employee is an unauthorized alien, the company may no longer continue to employ that person. It is unlawful to contract for alien labor if you know that the alien is unauthorized.

However, employees' undocumented status is not a defense for an employer that fails to pay the legal wage, according to a California court of appeal. Regardless of employees' immigrant status, they must be paid at least the prevailing, or minimum, wage for all time worked, but there is no such requirement or authorization for a court to require payment of loss of future wages or unearned "back pay."

Allowing employers to hire undocumented workers and pay them less than the prevailing wage subverts immigration policy by condoning and encouraging employers to continue to hire undocumented worker, the court said. In contrast, the court noted, awarding workers for wages they have already earned makes it clear to employers that they cannot profit from hiring and exploiting these workers.

Employers may not require additional or alternate identity and work authorization documents than those specified by the USCIS, and employers must honor documents that appear valid on their face.

Impact on Family Leave Rules

For employers concerned about the impact of the memorandum on the Family and Medical Leave Act regulations that went into effect on January 16, 2009, those regulations are final and have been published in the Federal Register, so they are currently in effect.

Updates on Watchdog Blog

The CalChamber is tracking these developments and, once any new information is available, will provide updates on the HRCalifornia Watchdog blog.