Final Form I-9 Rule Released

April 15, 2011

There is a rumor that the Commonwealth of the Northern Mariana Islands Transitional Worker Program Final Rule has been issued. It has not been issued. 

A final rule with changes to Form I-9, which is a form used in all of the United States for hiring was issued yesterday, Friday April 14th.

The rule is intended to improve the integrity of the Employment Eligibility Verification Form I-9 process.

The USCIS stated in their press release:
The main changes made by the interim rule and adopted by the final rule include: prohibiting employers from accepting expired documents; revising the list of acceptable documents by removing outdated documents and making technical amendments; and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of acceptable documents that employees may present to verify their identity and employment authorization is divided into three sections: List A documents, which show identity and employment authorization; List B documents, which show identity only; and List C documents, which show employment authorization only.
The rule gives examples of what documentation an employer can use to verify employment eligibility including documents specific to the CNMI.

Questions and Answers for CNMI Employers and Employees Regarding the Form I-9 from the USCIS Handbook:
Questions about the Commonwealth of the Northern Mariana Islands (CNMI)
The following questions and answers apply to employers and employees located in the CNMI only. 
Q. What is Form I-9 CNMI?
A. Form I-9 CNMI is a version of Form I-9 designated for use only in the CNMI by CNMI employers for their new hires on or after November 28, 2009. Form I-9 CNMI allows for the use of several types of employment authorization documentation that are unique to the CNMI, in addition to those acceptable in other parts of the United States. Form I-9 CNMI requirements apply to ALL new employees hired on or after November 28, 2009, regardless of citizenship.

Q. Do I need to complete Form I-9 CNMI for my current employees?
A. You only need to complete Form I-9 CNMI for employees hired on or after November 28, 2009. You should not complete Form I-9 CNMI for any employees already working for you on November 27, 2009, even if you assign them new job responsibilities within your company.

To obtain Forms I-9 CNMI, call the USCIS Forms Request Line toll-free at (800) 870-3676 or download Forms I-9 CNMI at www.uscis.gov/files/form/i-9_cnmi.pdf For more information on federal immigration law in the CNMI, go to www.uscis.gov/CNMI.

Q. What documentation may be used to complete Form I-9 CNMI?
A. In addition to the acceptable documentation generally provided for Form I-9 use, the following documents may be used on or before November 27, 2011 as evidence of identity and employment authorization to satisfy Form I-9 CNMI requirements: 
• An unexpired foreign passport and an Alien Entry Permit with red band issued to the individual by the CNMI Office of the Attorney General, Division of Immigration, before November 28, 2009 as long as the period of employment authorization has not yet expired;
• An unexpired foreign passport and Temporary Work Authorization Letter (including an umbrella permit as discussed further below) issued by the CNMI Department of Labor before November 28, 2009, and containing the name and photograph of the individual, as long as the period of employment authorization has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Temporary Work Authorization Letter; or
• An unexpired foreign passport and a permanent resident card issued by the CNMI government.

Q. Is an umbrella permit acceptable documentationof employment authorization for Form I-9 CNMI?
A. An umbrella permit is the common name for several types of Transition Conditional permits issued by the CNMI Department of Labor (CNMI DOL) or the CNMI Department of Commerce. To be evidence of employment authorization for Form I-9 CNMI, an umbrella permit must state on its face that it authorizes employment. The CNMI government widely issued umbrella permits shortly before the November 28, 2009, transition to federal immigration law. DHS is currently aware of the following types of umbrella permits:
• Category 240K Foreign National Worker Permit, which authorizes the permit holder to work for any private sector employer in the CNMI until November 27, 2011.
• Category 240D Immediate Relative Permit (immediate relative of U.S. citizen), which authorizes the permit holder to work for any employer in the CNMI until November 27, 2011.
• Category 240G, 240N, 240O Investment and Business Permit, which authorizes the permit holder to work for any employer in the CNMI until November 27, 2011.
• Category 240H Foreign Student, which authorizes the permit holder to work for any
employer in the CNMI until November 27, 2011.
• Category 240B CNMI Government Permit, which authorizes the permit holder to work for the CNMI government until November 27, 2011.
• Category 240E Immediate Relative Permit (immediate relative of sponsoring alien), which does not provide for employment authorization and, therefore, is not an acceptable document for Form I-9 CNMI. Holders of this permit are not authorized to work in the CNMI unless they have another basis for employment authorization. 
Umbrella permits have the seal of the CNMI DOL at the upper right. The letterheads vary: CNMI DOL (for Category 240K); CNMI Department of Commerce (for categories 240G, 240N, 240O, and 240H); or CNMI Division of Immigration (for categories 240D and 240E). The umbrella permit must contain the employee’s name and photograph. 
Employees who present an umbrella permit for Form I-9 CNMI must also present an unexpired foreign passport. These two documents are considered List A documentation of identity and employment authorization. 
Q. As an employer, may I demand that my new employee present his or her umbrella permit when completing Form I-9 CNMI?
A. No. The employee may present any acceptable document or document combination, as described in the Form I-9 CNMI instructions. The documents must reasonably appear on their face to be genuine and to relate to the individual. Employers who require employees to present specific Form I-9 CNMI documents may be committing an unfair immigration-related employment practice under section 274B of the INA, which may result in fines and penalties, as well as possible back pay for victims of discrimination.
For more information on employment discrimination, please see Part 4. 
Q. My employee’s umbrella permit has two dates. Which one controls the length of that employee’s employment authorization?
A. Holders of umbrella permits authorizing employment may work until November 27, 2011, even if the permit contains two dates. Umbrella permits contain a date with the legend “Next filing date to avoid revocation.” They also state that the permit is without effect after November 27, 2011. If these two dates are different, the holder of the umbrella permit is authorized to work in the CNMI until November 27, 2011. When completing Form I-9 CNMI, if an employee changes employers, the date Nov. 27, 2011 should be used as the expiration date for employment authorization in Section 1 of the form and as the document expiration date in Section 2 of the form.

Q. As a CNMI employer, do I need to obtain CNMI DOL approval to hire an umbrella permit holder?
A. No. Federal law does not require you to obtain CNMI DOL approval to hire an individual with an umbrella permit in the CNMI. Your new employee must fully complete Section 1 of the Form I-9 CNMI no later than the date that he or she begins work, and you must examine the employee’s documentation and complete Section 2 of the Form I-9 within three business days after the date the employee begins work. 
Q. What should my employee do if his or her umbrella permit has been lost, stolen, or damaged?
A. DHS cannot replace an umbrella permit for that employee. That employee should contact the CNMI DOL regarding its procedures for replacement of umbrella permits that have been lost, stolen, or damaged. Under Form I-9 CNMI procedures, a receipt for an application for the replacement document is acceptable evidence of employment authorization for a period of up to 90 days. The employee must present the replacement document within that time period.
The Form I-9 CNMI Employment Eligibility Verification

2 comments:

Anonymous said...

On your first paragraph, it said that the I-9 was for hiring foreigners. Well.. its actually required for ALL new hires.

Wendy said...

Yes, of course! Thanks!