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The United States Citizenship and Immigration Services (USCIS) has released a new version of the Handbook for Employers, Guidance for Completing Form I-9 (M-274), which is now available on the USCIS website. The M-274 is an essential compendium of I-9 compliance information and instruction, and is designed to supplement employers' understanding and knowledge of the various employment eligibility verification obligations.
The USCIS has issued this most recent version of the M-274 in connection with the new Form I-9 (rev. 11/14/16), which must be used by all employers as of Jan. 22, 2017. This practice advisory summarizes the most important changes to the M-274, and provides examples of the new and updated policy guidance affecting I-9 completion and retention.
Automatic EAD Extensions
The most significant change to the M-274 revolves around the process for documenting the automatic extension of Employment Authorization Documents (EAD) for certain foreign national employees working in the U.S. An automatic EAD extension is a fairly new concept, which was brought about by a Department of Homeland Security (DHS) rule that provides additional benefits and flexibility to high-skilled nonimmigrant workers in the U.S. Under the new rule, EADs can be auto-extended for up to 180 days for certain individuals who timely filed to renew an EAD that is in the same category as the previous EAD.
The new M-274 describes the various categories of foreign nationals currently eligible for these auto-extended EADs and sets out the process for reviewing the appropriate documentation and recording the information on the Form I-9. Employers familiar with "TPS extensions" (affecting those employees in Temporary Protected Status) will recognize the overall process, which involves updating both sections 1 and 2 to reflect the auto-extended date. The review process seems to go a bit further though, as employers are also required to more carefully review the underlying documentation (both the EAD and the receipt notice showing the renewal filing) to make sure the individual fully qualifies.
Pages 13 through 15 [of the M-274] include a detailed description of how auto-extended EADs should be completed on the Form I-9. The M-274 also makes reference to the auto-extended EAD rule on page 16 (reverification), page 18 (refugees and asylees), pages 25-26 (nonimmigrants requesting extensions of stay), page 44 (accepting an expired document), and page 48 (when employment authorization expires).
Additional I-9 Rules for Certain Foreign National Employees
In addition to the automatic EAD provisions, the M-274 features several other changes that will impact employers when hiring foreign national employees that have temporary work authorization. Here are a few areas worth noting:
1. E-Verify STEM: The USCIS now explicitly notes (in keeping with its recent guidance) that employers must use E-Verify at the specific hiring site where it employs an F-1 STEM student who received a 24-month extension of their optional practical training (see page 21).
2. F-1 students in CPT: An acceptable Form I-20 for F-1 students in curricular practical training (CPT) must have all employment authorization fields completed. These fields include employment status, employment type, start and end date of employment, and the employer's name and location (see page 21).
3. H-1B extensions: In the context of documenting an H-1B extension and the 240-day automatic work extension, the M-274 now also indicates the following on page 23: "your employee may update Section 1 by crossing out the expiration date of their employment authorization noted in the attestation. Write in the new date that the automatic extension of employment authorization ends. Initial and date this update in the margin of Section 1."
4. Extensions of stay: The M-274 also includes new instructions relating to documentation that must be maintained when filing an extension of stay for a qualifying employee. Specifically, page 25 indicates: "After you receive the I-797C, Notice of Action, which bears the amount of the filing fee submitted and acknowledges USCIS' receipt of the new Form I-129 petition, it is not necessary to maintain a copy of the Form I-129 application, proof of payment, and mailing receipt for Form I-9 purposes. You should retain the I-797C, Notice of Action to show that you filed for an extension of stay on the employee's behalf."
Form I-9 Retention
The M-274 also includes a new provision relating to the retention of I-9s for employees who never started work for pay. Specifically, the USCIS indicates the following on page 31:
"Employers must retain a Form I-9 for each person hired. This requirement applies from the date of hire, even if the employment ends shortly after hired, the hired employee never completes work for pay, or never finishes the Form I-9." (emphasis added)
Based on the above, the USCIS appears to be stating that employers need to retain I-9 forms for employees, regardless of whether or not they ever start work or receive a paycheck. Employers should note, however, that this new instruction is at odds with the regulations at 8 CFR 274a.2, which define an employer's I-9 obligation to individuals who provide services or labor for wages or remuneration. An individual who never starts work for pay would arguably not fall into this category (and thus no I-9 obligation exists). Moreover, officials from Immigration and Customs Enforcement (ICE) have previously noted that an employer is not required to retain a Form I-9 for an individual who never starts work for pay, and thus would not be required to produce the I-9 in the event of an inspection.
Given the apparent contradiction between this new guidance and the regulations, employers are advised to work with their legal counsel before adopting any strategies regarding the retention (or destruction) of I-9s for individuals who never started to work for pay.
John Fay is vice president and general counsel with LawLogix, a Division of Hyland in Phoenix. © 2017 LawLogix. All rights reserved. Reposted with permission of LawLogix.
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