As many of you have likely experienced at some time in your professional career, an employer is required under immigration laws to complete a Form I-9 and verify the identity and employment authorization for all new hires.  This applies to all U.S. employers and all workers.  This week, as in any other week since the creation of this requirement in 1986, employers are completing this form.  This week, however, many employers proceed with confusion while many others will be using the wrong Form I-9.  Why?

It appears DHS transition pains have reared their head in the obscure land of I-9s, resulting in the last minute postponement of a new revised Form I-9 that was scheduled to take effect this past Monday, February 2, 2009.

This date had been announced 60 days ago and has been the subject of DHS alerts reminding all employers of their legal obligation to use the new Form I-9 on this date.  DHS posted the new Form I-9 on the internet to assist in this transition – reminding employers to only use it on and after February 2, 2009.

For reasons unclear, DHS waited until late last Friday evening – to be exact around 6 p.m. EST – to formally announce that the effective date of the new Form I-9 was being postponed to at least April 3, 2009.

From the time frames involved, one can envision a poor USCIS employee running to the Federal Register building Friday evening to slide the notice delaying the Form I-9 under closed office doors.  One cannot envision, however, employers – regardless of how committed they are to implementing immigration verification laws – standing by their computers waiting on a DHS alert on a Friday evening.  Even less likely do I see them trolling the DHS website and I-9 sections over the weekend.  As a result, confusion and rumors on the I-9 have resulted this week.

While as an immigration attorney I appreciate the additional need for legal services to answer questions and clarify what happened over the weekend, the reality is that this type of abrupt decision-making does not benefit the overall immigration process.   Frankly, it only adds to the employer community’s growing perception that DHS does not really know what it is doing with respect to employee verification and the business community.

Why did DHS wait until the weekend before the new form became effective to postpone it?  Particularly if DHS had expressed its intent 60 days earlier to implement the form?  Perhaps the answer may be attributed to the transition being experienced by the new DHS regime.  While I do not disagree with the prerogative of a new Administration to review regulatory changes made in the waning days by the predecessor Administration, there has to be some thought to the proper communication of the exercise of this prerogative to those impacted, particularly in a situation that impacts every employer and new hire in the United States.

This type of last minute change in immigration policy and the ensuing confusion is not unique and is symptomatic of the challenges that new DHS Secretary Napolitano faces in overseeing the continued evolution of DHS.

It is ironic that on the same day the last minute postponement was announced, DHS Secretary Napolitano issued the last of 12 action directives on DHS mission priorities that was dedicated to immigration and border security issues.  The directive covered key areas of the DHS immigration mission that must continue to advance, most of them rightfully dealing with enforcement issues.

Appropriately, a large section of the directive addressed issues surrounding E-Verify and the employee verification process.  Unfortunately, this section failed to include the concept of “customer service” and the need for timely and open communication with the employer community.  While the last minute change of direction with the new Form I-9 will not cause a direct threat to national security, it will undermine the public’s already shaky confidence in DHS’ ability to properly address employee verification requirements.  Perhaps as the confusion arising from Friday’s Form I-9 about-face subsides, DHS will take the opportunity to reconsider this omission in the directive.

Until then, and as part of a fledgling public awareness campaign, I strongly advise any employers reading this and who are using the “new-but-now-postponed Form I-9” to stop doing so and revert back to the “old-but-now-revived-Form I-9.”

Victor X. Cerda is a Partner of Jackson Lewis LLP in the firm’s Corporate Immigration Group in the Washington DC Region office.  He focuses on advising corporations and individuals on immigration compliance and benefits strategies.