Business Immigration Insights

As of May 1, 2020, when employers verify identity and employment authorization for their employees, they must use the October 21, 2019, edition of Form I-9, Employment Eligibility Verification.

On April 28, 2020, USCIS released a revised version of the M-274 Handbook for Employers to provide updated instructions for completing the new edition of Form I-9 and to provide guidance the agency believes is better aligned with immigration regulations.  The following are the major updates and clarifications now contained in the Handbook.

Who can act as an authorized representative?

More and more employers are asking who can act as an authorized representative for purposes of completing Sections 2 and 3 of Form I-9, especially with a workforce that is now partly or completely remote because of COVID-19 stay-at-home orders.

Previous M-274:  The M-274 Handbook has always stated that an employer may designate, hire, or contract with any person of their choosing to complete, update, or correct Sections 2 and 3 on the employer’s behalf.  The authorized representative must perform all of the employer’s duties, as described in the Handbook, and must complete, sign and date Section 2 or 3.  The employer remains liable for any violations committed by the authorized representative in connection with the form or the verification process, including violations of employer sanction laws.

Updated M-274:  The new Handbook clarifies what was not explicitly set out in the previous version:  that employees cannot act as an employer’s authorized representative for their own I‑9 forms.  Therefore, employees cannot complete, update or correct Section 2 or 3 for themselves, nor can they attest to the authenticity of the documents they themselves present.

How should employers reverify EADs that are automatically extended based on pending applications?

Many Employment Authorization Documents are automatically extended for 180 days as long as the employee applies to renew before the current EAD expires.  These include EADs based on pending applications for adjustment of status, asylum, and STEM OPT.

Previous M-274:  The previous version of the Handbook instructed employers that, when they reverified I‑9s in these cases, they should ask the employee to update Section 1 by crossing out the expiration date previously entered in the “Alien authorized to work until” field, writing in the 180-day auto‑extension date, and initialing the correction.

Updated M-274:  The new Handbook retracts the previous instruction.  Employees should no longer make any changes to Section 1 for 180-day EAD auto-extensions.  Employers should continue to follow the previous instruction and enter the 180-day auto-extension date in the Additional Information field of Section 2.

How should employers verify or reverify EADs that are automatically extended under “H‑1B cap-gap” authorization?

A foreign student who has an EAD for Optional Practical Training may continue working after the EAD expires, but only through September 30 of that year, as long as an employer has filed an H-1B change‑of-status petition in the annual lottery prior to the EAD expiration date.  The period between the expiration date and September 30 is called the “cap gap” because of the “cap” on the new H-1B numbers that become available each October 1, the first day of the federal government’s fiscal year.

Previous M-274:  Under the previous version of the Handbook, in order to reverify Form I‑9 for their employees in the cap-gap period, employers were required to see a new Form I-20 Certificate of Eligibility for Nonimmigrant Student Status that had been issued by the student’s school and that contained a specific cap-gap authorization, and record the I‑20 as the employment eligibility document in Section 2.

Updated M-274:  The new Handbook no longer requires students to present a Form I-20 for cap-gap employment authorization.  Instead, to verify new employees, employers enter the EAD as the Document Title, the receipt number from the I‑797C, Notice of Action, for the H-1B petition as the Document Number, and “9/30/yyyy” as the Document Expiration Date, then enter “CAP-GAP” in the Additional Information field.  To reverify existing employees, the employer simply enters “CAP-GAP 9/30/yyyy” in the Additional Information field.

How should employers verify or reverify EADs that are automatically extended by Federal Register notices?

Individuals who are authorized to work in the United States because they hold Temporary Protected Status may continue working after their EADs expire as long as the government has renewed TPS for their home countries by publishing a notice in the Federal Register.  The Federal Register is the official journal of the federal government of the United States.  Published every weekday, it contains government agency rules, proposed rules, and public notices.

Previous M-274:   With no mention of the Federal Register at all, the 2017 version of the Handbook instructed as follows for the TPS category:

• New Employee: A new hire was to present the expired EAD and I-797 receipt notice for the renewal application, select “Alien authorized to work until” in Section 1, and fill in the blank with the date that was 180 days from the EAD expiration date.  The employer was to complete Section 2 using the expired as Document Title, the I-797 receipt number as Document Number, and the same 180-day date as Expiration Date.
• Current Employee: For current employees whose TPS was extended, the employer was to update Section 2 by drawing a line through the old expiration date, writing the new expiration date in the margin, entering “EAD EXT” in Section 2, and initialing and dating the correction.

Updated M-274:  The new Handbook puts the Federal Register, in which TPS is either extended or terminated, front and center for I-9 verification.  A link to each active Federal Register notice can be found on the USCIS TPS page.  This change is bound to cause even more confusion in a work-authorized category that is already extremely confusing for most employers.  Since most people outside the legal profession are unfamiliar with the Federal Register, both workers and their employers will likely be unaware that this obscure publication is now required reading for verification of TPS employment eligibility.  The new Handbook instructs as follows:

• New Employee: Instead of using the 180-day date as the “authorized to work until” date, as the prior Handbook instructed, the new hire must now enter the automatic extension date provided in the Federal Register notice.  In completing Section 2, the employer will still use the EAD as Document Title, but now must use the EAD number as Document Number, and the auto-extension date in the Federal Register as Expiration Date.
• Current Employee: As instructed in the prior Handbook, the employer will still enter “EAD EXT,” but now will enter it in the Additional Information field of Section 2 rather than in the margin, and will not line through the previous date.  Again, the employer must enter the auto-extension date from the Federal Register notice in the Additional Information field as well.

What date should an employee on an F-1 or J-1 visa enter for “authorized to work until” in Section 1?

Employers are told to give new hires the I-9 instructions to help them complete Section 1 of Form I-9 completely and accurately.  However, in 15 pages of instructions, little to no guidance is provided for an employee who is neither a U.S. citizen nor a lawful permanent resident to complete the “Alien authorized to work until” field.  Both previous and updated versions of the Handbook outline various documents that can demonstrate employment authorization for F-1 foreign students and J-1 exchange visitors.  However, these documents vary widely because they are directly tied to a variety of education and training programs in these categories.  While both previous and updated versions of the Handbook outline guidance for some of these situations, neither version covers all of them.

For assistance in verifying information and documents provided by an employee for the I-9 and in completing Sections 2 and 3, please consult one of our immigration attorneys.