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Form I-9 Employment Eligibility Verification Updates

May 19, 2020

Commencing May 1, 2020, employers verifying identity and employment authorization for their employees must use the October 21, 2019 edition of Form I-9: Employment Eligibility Verification. All U.S. employers must properly complete Form I-9 for each person they hire, regardless of whether the individual is a U.S. citizen, permanent resident or non-citizen. 
The revised M-274 Handbook for Employers, published on April 28, 2020 by U.S. Citizenship and Immigration Services (USCIS), provides updated instructions and guidance for completing the I-9 Form consistent with current immigration regulations. The M-274 Handbook has always been a great resource for I-9 information and provides nuggets of information that are invaluable to human resource professionals and many others tasked with the responsibility of assuring I-9 compliance for their companies.

New Definition of Authorized Representative 

  • The new M-274 Handbook clarifies information not previously expressed in the prior version - that employees may not act as an employer's authorized representative for their own I-9 forms. Therefore, employees may not complete, update or correct Section 2 or 3 for themselves nor can they attest to the authenticity of the documents themselves. List B documents are set to expire after March 1, 2020 - a special exception due to COVID-19.
  • Starting May 1, 2020, identity documents set to expire on March 1, 2020 or later may be treated the same as if the employee had presented a valid receipt which would be an acceptable document for Form I-9 purposes. 
    • Considering the stay-at-home orders due to COVID-19 and suspension of government operations, presenting renewals of documents can be challenging. For this reason, the Department of Homeland Security (DHS) has relaxed its policies and issued a temporary fix regarding expired List B documents to complete the I-9 form. Note, however, that employees will ultimately be required to present a valid unexpired document within 90 days after termination of this temporary policy once DHS announces this change.

Reverification of Employment Authorization Documents Automatically Extended Based on Pending Applications 

Since many employment authorization documents are automatically extended for 180 days - as long as an employee applies to renew before the current Employment Authorization Document (EAD) expires- employers are instructed to follow prior instructions and enter the 180-day auto-extension date in the Additional Information field of Section 2. 

The EAD, issued by USCIS, permits foreign nationals who already hold a visa or other lawful status to remain in the United States and to remain gainfully employed. This might apply, for example, to those in the United States pursuant to a grant of asylum, temporary protected status or as the spouse of a nonimmigrant authorized for employment under current federal regulations. 

Foreign students with employment authorization for Optional Practical Training may continue to work after an EAD expires, as long as the employer has filed an H-1B change of status petition in the H-1B pre-registration lottery prior to the EAD expiration date. During the "cap-gap" period and until September 30, 2020, employment remains authorized. The employer would enter the EAD receipt number as "document titled" from Form I-797C: Notice of Action for the H-1B petition as the document number, and 09/30/xxxx as the document expiration date, and then enter "CAP-GAP" in the Additional Information Field. For reverification purposes, the employer would indicate 'CAP-GAP" in the Additional Information Field. It is important to note that if an H-1B petition and change of status is not adjudicated by September 30, 2020, the student may not remain on the U.S. company's payroll. This year, with the current suspension of premium processing, it is more important than ever to track foreign student EAD expiration dates and review upcoming expirations by mid-September 2020 to assure that no I-9 violations are inadvertently committed by an employer.

Expiration Dates for F-1 Students and J-1 Exchange Visitors

Neither the old nor the new M-274 Employer Guide Handbooks provide clear guidance as to how a foreign national should complete the "Alien authorized to work until" field. While various documents may be furnished, the Handbook does not address specific configurations and unique situations.

However, the new M-274 Employer Handbook is a welcome addition to those who rely on complicated federal regulations to assure I-9 compliance. 

The Handbook, which is readily downloadable on the USCIS website may be found here.
Attorney Advertising. The information contained in this Legal Alert provides a general summary of the topics covered and is not intended to be and should not be relied upon as legal advice. You should consult with your legal counsel for advice and before making legal, business or other decisions.
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