This is an important update from AILA for our readers.The following is guidance regarding I-9 and immigration-related discrimination issues in response to the invalidation of pre-July 1, 2010 Puerto Rico birth certificates.
Q: Why is there a new law on Puerto Rico birth certificates?
A: The U.S. Department of State’s Bureau of Diplomatic Security, which investigates U.S. passport fraud, has long had concerns about the prevalence of fraud in passports based on Puerto Rico birth certificates. The State Department reports that about 40% of all passport fraud investigations involve Puerto Rico birth records. In part, the problem was a result of the prevalent use of birth certificates in Puerto Rico for all sorts of unofficial and official transactions and the retention of original true copy birth records by diverse organizations across all sectors of society, including schools, churches, sports teams, and government voter and driver registration offices. Often these birth certificates were not stored in secure environments and, as a result, many were stolen and sold.
Q: When does the law go into effect?
A: In 2009, the Legislative Assembly of Puerto Rico passed the new law to be effective July
1, 2010. Subsequently, the law was amended to allow a phase-in period of three months, from July 1, 2010 to September 30, 2010. On September 23, 2010, the Governor of Puerto Rico extended the phase-in period to October 30, 2010. As of July 1, 2010, a new process is in effect for Puerto Rican citizens to request and be issued the new, secure birth certificate. As of October 31, 2010, no birth certificates issued before July 1, 2010 can be presented for any purpose.
Q: What is the impact of the law on the I-9 employment verification process?
A: Employers should be aware of the effect of the new law in the following I-9 situations:
• I-9 forms completed through October 30, 2010: The employer can accept Puerto Rico birth certificates issued prior to July 1, 2010, if the employee chooses to provide the birth certificate to prove work authorization (List C document).
• I-9 forms completed on or after October 31, 2010: The employer can only accept Puerto Rico birth certificates issued on or after July 1, 2010, if the employee chooses to provide the birth certificate to prove work authorization (List C document). If the employee chooses to present other I-9 documentation (such as a U.S. passport or a valid driver’s license and unrestricted social security card) the employer may not require the employee to present a new Puerto Rico birth certificate or any other specific documents.
• Legacy Puerto Rico birth certificates in existing I-9 records: The employer is not required to reverify I-9 documentation of employees who prior to October 31, 2010 presented Puerto Rico birth certificates issued before July 1, 2010, or to otherwise track or identify which employees presented birth certificates issued before July 1, 2010. Reverification of I-9 files containing legacy Puerto Rico birth certificates is not necessary and would constitute an unfair employment-related immigration practice
for all employers including federal contractors who are subject to the E-Verify clause.
• Continuing I-9 obligations: As with any I-9 document, it is required that an employer be presented with an original Puerto Rico birth certificate or a certified copy. Likewise, regardless of whether the Puerto Rico birth certificate was presented for I-9 purposes either before or after October 31, 2010, it is required that the birth certificate be valid on its face and reasonably relate to the individual presenting List B Identity Document.