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Ice on Immigration: Passports and US citizens; Residency and Marital Separation; 1-9 Employment Form

By L. Patricia Ice, Featured Columnist

Passports to be required for US citizens traveling abroad

Question:  I have heard that United States citizens will soon have to have a passport to exit or enter the country.  Is this true?

Answer:  Yes.  The first phase of a joint United States Department of Homeland Security and Department of State plan, known as the Western Hemisphere Travel Initiative, will affect certain United States citizens and non-immigrants (those coming temporarily) entering the United States.  Beginning January 23, 2007, all United States citizens and non-immigrants from Canada, Bermuda, and Mexico departing from or entering the United States from within the Western Hemisphere at air ports-of-entry will be required to present a valid passport.  Regulations for required passport use at land and sea ports-of-entry will not be implemented on January 23, but will be addressed in the future.  Eventually everyone departing from and entering the United States will be required to have a passport. 

Conditional Permanent Resident Petition (I-751) after marital separation

Question:  I am married to a United States citizen and I have two-year conditional permanent residence, which is about to expire.  It is time for me to file the immigration form I-751 Petition to Remove the Conditions on Residence, but my wife and I are separated.  I married my wife for love, but things have just not worked out.  I would like to continue to reside in the United States as a permanent resident.  My wife and I have jointly filed for a divorce and she refuses to sign the I-751 form.  Can I go ahead and file the I-751 and request a waiver of filing a joint petition?  If I do, what is the possibility of approval? 

Answer:  It is USCIS policy not to adjudicate, either approve or deny, an I-751 if a waiver is requested based upon a good faith marriage unless the immigrant is divorced from the United States citizen.  If you file the I-751 Petition before the divorce is final, you will most likely have to file a new I-751, with the filing fee, after the divorce and request the waiver again at that time.  If you are requesting a waiver based upon domestic violence or because extreme hardship would result to you if you have to leave the United States, you can file the I-751 Petition prior to the divorce, and it can probably be adjudicated before the divorce is finalized.  However, if you are filing a waiver due to domestic violence or extreme hardship, you will probably have to demonstrate to immigration authorities that you married your United States citizen wife in good faith. 

The Basics and Importance of the 1-9 Employment Form

Question:  I am an immigrant and I have permission from the United States Department of Homeland Security to work in the United States.  My employer is concerned about recent government raids on companies and whether he is in compliance with laws governing the hiring of personnel.  Would you please give a basic overview of I-9 form procedures? 

Answer: With an increase in workplace enforcement and criminal penalties, it is more important than ever to emphasize to employers and employees the importance of completing and maintaining I-9 forms properly. According to the Immigration Reform and Control Act of 1986, all employers must complete and keep a United States Department of Homeland Security I-9 form for each regular employee.  The employer does not have to complete an I-9 form for an independent contractor or an intermittent employee.  Reviewing the I-9 form provides the employer and employee an opportunity to correct existing technical violations, train company representatives responsible for I-9 completion and tracking, and to help develop employer compliance procedures.

Section 1 of the I-9 form must be completed by the employee on or before the first day of employment. Although the employee must fill out, sign and date this portion of the form, the employer is responsible for making sure that this section is filled out completely.  The employee must provide the employer with certain documents proving the employee's eligibility to work, but the employer cannot dictate which documents the employee provides.  The employee can choose to provide one identity document from list A or two documents from lists B and C on the back of the I-9 form. 

Section 2 of the I-9 must be completed, signed and dated by a company representative on or before the end of an individual's third day of employment. The company representative must review original eligibility documents provided by the employee for purposes of completing this section, except as noted in the form directions. The employer is not required to keep copies of the employee identity document(s), although most employers do.  Whether or not to keep copies of the required document(s) is the subject of debate.  However, the company should have a consistent policy for all employees. Each relevant line in Section 2 must be fully completed and include the document title, issuing authority, number, and expiration date, if applicable.

Section 3 of the form is used to re-verify an employee's work authorization.  This is necessary if the previous documents used for eligibility have expired during the course of employment. 

If a correction is necessary on the I-9 form, only an employee can correct an entry in Section 1, and only a company representative can correct an entry in Section 2 or 3. If a correction needs to be made, the person making the correction should write in the correct information in a different color ink and cross out the incorrect information, then initial and date the correction. The company representative should not throw out the old I-9 form and should complete a new form with the old date.

Some employers report that they are not able to distinguish valid employment authorization documents from fraudulent ones. The employer is not required to verify the authenticity of documents, but should use common sense judgment.  Nonetheless, in response to this concern, the Department of Homeland Security has developed the Immigration and Customs Enforcement (ICE) Mutual Agreement between Government and Employers (IMAGE) program. The goal is to assist employers with fraudulent document awareness through education and training. The IMAGE program also includes the Basic Pilot Employment Verification Program. This is a voluntary program that allows employers to use an automated Internet-based system to check employment authorization documents against Department of Homeland Security and Social Security Administration databases. Employers participating in the Basic Pilot program still need to complete and maintain I-9 forms for all employees.

General information about the I-9 process and the IMAGE program can be found online at uscis.gov or dhs.gov.