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Important I-9 Issues Covered in a Meeting with USCIS and ICE

On February 18, 2014, unofficial minutes were published from a November 19, 2013 meeting with USCIS and ICE regarding Form I-9. One of the most important matters discussed in the meeting was the inability of an employee to provide his or her I-94 number on the first day of employment due to technical issues within the CBP’s online I-94 system. USCIS rejected suggestions that would allow for employment without providing the I-94 number (e.g., implementing a procedure comparable to the Receipt Rule used in Section 2). USCIS stated that adopting such suggestions would constitute rulemaking. USCIS instead relied heavily on CBP’s statement that it neither has nor ever had glitches in its system. USCIS emphasized the regulation that if the employee’s I-94 number is required to complete Section 1 and the number is not known, then the employee cannot work for pay as the Form I-9 cannot be completed. This also means that the employer cannot open an E-Verify case for that individual.

A second important issue discussed was whether birth certificates issued by hospitals are acceptable List C documents. The Form I-9 Manual (M-274) reads that only birth certificates issued by government authorities are acceptable. USCIS’s I-9 Central guidance on the matter states that USCIS cannot comment on state law or whether a hospital may have the authority to issue birth certificates under that state law. USCIS was asked revise and clarify the guidance to recognize that state laws may have changed in the decades between birth certificate issuance and presentation to complete the Form I-9. USCIS refused this suggestion and in response repeated the I-9 Central guidance language on the issue.