U.S. Citizenship and Immigration Services (USCIS) recently updated its Handbook for Employers: Guidance for Completing Form I-9, also called M-274. These changes are meant to clarify and add detail to existing Form I-9 rules, but do not alter the Form I-9 rules themselves or the version of the Form I-9 that employers should currently be using. As of April 30, all employers must use Form I-9 dated 10/21/2019. However, a few of these clarifications to the new edition of USCIS’ Handbook are of note.
- Authorized Representative: When an employer is unable to physically examine the employee’s documentation to complete Section 2 of Form I-9, employers are permitted to designate an authorized representative to act on their behalf. USCIS has updated the Handbook to state that employers can designate, hire, or contract with anyone as the employer’s authorized representative to complete Section 2 and/or Section 3 on the employer’s behalf. Previous language that an authorized representative may be an employee’s friend or family member has been removed. However, this guidance does not mean that an employee’s friend or family member may not be designated as the employee’s authorized representative but instead, reinforces the fact that the authorized representative is responsible for following all of the I-9 rules. The employer is liable for any errors or violations made by the authorized representative.
- List C Employment Authorization Document: The Handbook has been updated to ensure employers do not confuse the Employment Authorization Document from List A and List C. The important distinction is that List A refers to an Employment Authorization Document (EAD), also referred to as Form I-766 or more simply, “work card,” which contains a photograph of the employee. List C refers to employment authorization documents issued by the Department of Homeland Security which do not contain a photo but which otherwise confer work authorization. For example, this would include an employer-sponsored visa approval notice.
- Automatic Extensions of EAD cards: The Handbook now includes more detailed instructions on how to complete Form I-9 where the employee’s EAD has been automatically extended. Importantly, the Handbook clarifies that employers should use the “Additional Information” field where the employee presents documentation showing that the employee is eligible for an automatic extension of work authorization. If the employee is presenting initial documentation at the start of employment, “EAD EXT” should be written in the Additional Information field. If the employee’s work authorization documentation is subject to reverification and the employee presents documentation of an automatic EAD extension, then the employer should write “EAD EXT” and the new expiration date in the Additional Information field. Employees should not be directed to cross out the information contained in the field “alien authorized to work until.”
- H-1B Cap-Gap Extension: Employees who are working pursuant to OPT whose employers have filed an H-1B visa petition on their behalf that is subject to the annual limit on the number of H-1B visas available may be entitled to an automatic extension of their OPT work authorization while that H-1B petition is pending. This is known as an H-1B cap-gap extension of work authorization. The Handbook clarifies that employers who are completing Forms I-9 or reverifying work authorization documentation for these employees should enter the receipt number from Form I-797C as the Document Number in Section 2. The employee’s Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, is no longer required. Generally, cap-gap work authorization will expiration on September 30th of that same year. Employers are encouraged to work closely with immigration counsel to ensure the employee is eligible for cap-gap work authorization.
Employers are encouraged to regularly review the Handbook as it contains helpful information on Form I-9 completion. Should you have questions about these clarifications or Form I-9 generally, please contact Kelli Meilink or Christine Fabin.