On September 9, 2010 the USCIS released I-9 guidance on the implications of the Puerto Rico Birth Certificate law, which calls for the issuance of newer, more secure Puerto Rico birth certificates starting July 1, 2010, as well as the invalidation of previously issued birth certificates effective September 30, 2010. The law, based on collaboration with the Department of State and the Department of Homeland Security, was enacted to address fraud and identity theft associated with Puerto Rico birth certificates. According to the U.S. State Department’s bureau of diplomatic security, Puerto Rico birth certificates are the source of approximately 40% of the 8,000 cases of passport fraud that the agency investigates. This epidemic is due in large part to the common practice in Puerto Rico of requiring birth certificates (or birth certificate copies) for a variety of governmental and nongovernmental transactions.

How does this affect the I-9 Process?

Since the very first I-9 form was released, an original or certified copy of a US birth certificate has always been an acceptable “List C” document which establishes an employee’s eligibility to work in the U.S. With the passing of this new law, employers may now face situations where a US citizen may present a pre-July 1, 2010 Puerto Rico birth certificate which has, by law, been invalidated. Can employers accept these or do they now have an obligation to scrutinize the issuance date for I-9 purposes? What happens if the employer simply wants to update an existing I-9 form that has an old PR birth certificate for a recent rehire or for federal contractor purposes?

USCIS Guidance

Fortunately, the USCIS has provided answers to all of these questions in yesterday’s guidance. In a nutshell, here is what you need to know:

1. New Hires

Beginning Oct. 1, 2010, employers may only accept certified copies of Puerto Rico birth certificates that were issued on or after July 1, 2010. To make this determination, employers should look at the date the certified copy was issued to ensure it is valid. Prior to October 1, 2010, employers may accept all certified copies of Puerto Rico birth certificates when completing new I-9s.

2. Existing Employees

Employers must not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for Form I-9 purposes and whose employment eligibility was verified on Form I-9 prior to Oct. 1, 2010.

3. Federal Contractors

Employers who are awarded a federal contract that contains the FAR E-Verify clause may have situations where they need to complete a new I-9 or update an existing I-9 before submitting the information to E-Verify.

If the employer completes a new I-9, the same rule for new hires mentioned above applies: beginning Oct. 1, 2010, employers may only accept certified copies of Puerto Rico birth certificates that were issued on or after July 1, 2010. Prior to October 1, 2010, employers with FAR contracts may accept all certified copies of Puerto Rico birth certificates when completing new I-9s.
If the employer simply updates an existing I-9 form, the employer must not ask an employee to present a new certified copy of a Puerto Rico birth certificate.
4. Document Retention

Although the new law prohibits Puerto Rico employers from keeping original certified copies of birth certificates, employers may still keep photocopies of these documents (as long as it does so regardless of national origin or citizenship status).

Need more information? Please visit the USCIS web site here for the Form I-9 guidance. For more information about birth certificates issued in Puerto Rico, please visit the Puerto Rico Federal Affairs Administration web site here.

For More Information