I-9 Form Control Number Expired on June 30, 2008!
The Department of Homeland Security as of July 1st is out of compliance
with the Paperwork Reduction Act, if it continues to require use of the I-9 Form.
However employers need to exercise extreme caution before ignoring I-9 requirements.

If you look at the top of the I-9 form you will see a legend that states: 

Employment Eligibility Verification     
 OMB No. 1615-0047; Expires 06/30/08

What is the significance of an expired Office of Management and Budget (OMB) Control Number?  The answer is found in the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.  That act created the OMB control number system and sets forth the consequences of not having a valid, i.e unexpired, OMB Control Number.  Section 3512 states:

Public protection

(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if--

(1) the collection of information does not display a valid control number assigned by the Director in accordance with this subchapter; or

(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.

(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.

44 U.S.C. 3512

So if after June 30. 2008 the Department of Homeland Security has not obtained a renewed OMB Control Number, under the terms of the Paperwork Reduction Act, employers may not be able to be penalized by the Federal Government for not filling out an I-9 form.   But EXTREME CAUTION must be exercised because much will depend on whether the form is required by statute or regulation, because Federal Court decisions and OMB regulations have limited somewhat the applicability of Section 3512.  See below. 

Watch closely to see if a new or extended OMB Control number is obtained for the I-9 form.  We will let you know when we learn of it.  However it has been almost two months since the  OMB Control Number expired, so you may want to contact your Congressional Representative or Senator  to determine why DHS is not in compliance with the Paperwork Reduction Act by not getting an updated OMB Control Number and if this signifies any change in policy.  You can determine where to email or write your Representative by going to http://www.house.gov/writerep.  You can determine where to email or write your Senator by going to http://www.senate.gov/general/contact_information/senators_cfm.cfm.

By the way, it is because of the Paperwork Reduction Act that the IRS ensures that income tax forms have a valid OMB Control number.  Look at your 1040 tax form and you will find the number.  For interesting court decisions distinguishing regulations and instructions from forms see U.S. v Dawes, 951 F.2d 1189 (10th Cir, 1991) and U.S. v Hicks, 947 F.2d 1356 (9th Cir 1991).

The reasoning of the Hicks Court suggests that failure to comply with a statutorily imposed information request may subject you to penalties even if there is no OMB Control Number but failure to comply with an information request imposed by regulation that has no OMB Control Number may not subject you to penalties.  The Court said:

The IRS, like any federal agency, must comply with the PRA [Paperwork Reduction Act] and, in particular, must display OMB control numbers on its tax return forms and on its regulations. See Dole v. Steel-workers, 494 U.S. 26, 110 S.Ct. 929, 933, 108 L.Ed.2d 23 (1990) (tax forms are typical of the information requests subject to the PRA). But even assuming without deciding that the IRS failed to comply with the PRA here, its failure does not prevent Hicks from being penalized.
[15] The legislative history of the PRA and its structure as a whole lead us to conclude that it was aimed at reining in agency activity. See S.Rep. No. 930, 96th Cong.2d Sess., reprinted in 1980 U.S.C.C.A.N. 6241 (legislative history of PRA). Where an agency fails to follow the PRA in regard to an information collection request that the agency promulgates via regulation, at its own discretion, and without express prior mandate from Congress, a citizen may indeed escape penalties for failing to comply with the agency's request. See, e.g., United States v. Hatch, 919 F.2d 1394 (9th Cir. 1990); United States v. Smith, 866 F.2d 1092 (9th Cir. 1989). But where Congress sets forth an explicit statutory requirement that the citizen provide information, and provides statutory criminal penalties for failure to comply with the request, that is another matter. This is a legislative command, not an administrative request. The PRA was not meant to provide criminals with an all-purpose escape hatch. See United States v. Burdett, 768 F. Supp. 409 (E.D.N.Y. 1991); see also United States v. Wunder, 919 F.2d 34, 38 (6th Cir. 1990) ("Defendant was not convicted of violating a regulation but of violating a statute which required him to file an income tax return.").

[16] Moreover, the provision of the tax code under which Hicks was convicted predates the PRA by over 25 years. If, in enacting the PRA, Congress had intended to repeal 26 U.S.C. § 7203, it could have done so explicitly. Repeals by implication are not favored. Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974). Congress enacted the PRA to keep agencies, including the IRS, from deluging the public with needless paperwork. It did not do so to create a loophole in the tax code.

Hicks at 1359

So EXTREME CAUTION must be exercised here.  Much will depend on whether the information required on the I-9 form is viewed as a statutory or regulatory requirement.

OMB regulations concerning Controlling Paperwork Burdens on the Public, 5 C.F.R. 1320.1 - 1320.18, have narrowed the applicability of Section 3512.  OMB has issued a regulation that states in relevant part:

The protection provided by paragraph (a) [cannot impose a penalty if no valid control number] of this section does not preclude the imposition of a penalty on a person for failing to comply with a collection of information that is imposed on the person by statute - - e.g., 26 U.S.C. Sec.6011(a) (statutory requirement for person to file a tax return), 42 U.S.C. Sec. 6938(c) (statutory requirement for person to provide notification before exporting hazardous waste).

5 C.F.R. 1320.6(e)

But OMB regulations also provide:

 (c) Whenever an agency has imposed a collection of information as a means for proving or satisfying a condition for the receipt of a benefit or the avoidance of a penalty, and the collection of information does not display a currently valid OMB control number or inform the potential persons who are to respond to the collection of information, as prescribed in §1320.5(b), the agency shall not treat a person's failure to comply, in and of itself, as grounds for withholding the benefit or imposing the penalty. The agency shall instead permit respondents to prove or satisfy the legal conditions in any other reasonable manner.

5 C.F.R. 1320.6(c) (emphasis added)

Click here for an electronic copy of OMB regulations concerning Controlling Paperwork Burdens on the Public, 5 C.F.R. 1320.1 - 1320.18,