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Immigration Law

Update on Puerto Rico Birth Certificates: I-9s and Supporting Evidence for Applications

As previously reported (15 Bender's Immigr. Bull. 1071 (Aug. 1, 2010)* and 15 Bender's Immigr. Bull. 467 (Apr. 1, 2010))*, all Puerto Rico birth certificates issued prior to July 1, 2010, have been invalidated and the Vital Statistics Record Office has begun issuing new, more secure, certified copies of birth certificates to all Puerto Ricans, including those living in the United States.

On September 9, 2010, USCIS issued an update reminding employers that, beginning October 1, only certified copies of Puerto Rico birth certificates issued on or after July 1 are acceptable for employment eligibility verification (Form I-9). That guidance was updated today with an announcement that the Governor of Puerto Rico had issued an executive order stating that birth certificates issued before July 1, 2010 would be valid through October 31, 2010. The validity of birth certificates issued prior to July 1, 2010 was originally set to expire today.

Employers are not to re-verify the employment eligibility of existing employees who presented a Puerto Rico birth certificate and whose employment eligibility was verified before November 1, 2010. This guidance also applies to federal contractors. This new law prohibits Puerto Rico employers from keeping original certified copies of birth certificates issued in Puerto Rico, but allows employers to keep photocopies of these documents. Employers are reminded that if they choose to make photocopies of documents their employees present when completing Form I-9, they must do so for all employees. This Update, "Effects of Invalid Puerto Rico Birth Certificates on the Form I-9 Process," is reprinted as Appendix A.

On September 20, USCIS released an interim policy memorandum (dated August 26, 2010), addressing Puerto Rico birth certificates as supporting evidence for applications and petitions. Although this memo was released for comment until October 4, 2010, the memorandum as written is in effect until further notice. The memorandum addresses Puerto Rico birth certificates issued before and after July 1, 2010, where the petition or application is postmarked on or before September 30, 2010. It also addresses post-September 30 mailings. In addition, it provides guidance relative to presentment at Application Support Centers, which essentially follows the I-9 rules. This memorandum is now subject to interpretation based upon the executive order which extends the validity of birth certificates issued prior to July 1, 2010 through the end of October. This interim memorandum, "Validity of Puerto Rico Birth Certificates as Evidence (AFM Update AD10-43)," PM-602-0007 (Aug. 26, 2010), is reprinted at Appendix B.

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