USCIS Issues New Form I-9 Handbook for Employers

The issue

A new edition of USCIS’s Handbook for Employers: Guidance for Completing Form I-9 (M-274) has been issued, providing updated guidance and clarification of several Form I-9 employment eligibility verification procedures. These changes include revised guidance for completing an I-9 form in specific situations, such as F-1 foreign students changing status to H-1B and foreign workers with an automatic extension of a USCIS employment authorization document (EAD), among other changes. The new Handbook also clarifies how an individual can serve as an authorized representative to complete Form I-9 on behalf of an employer, which is especially important in remote work environments.

Form I-9 completion by authorized representatives

The new Handbook clarifies that an employer “may designate, hire, or contract with any person … to complete, update or make corrections to Section 2 or 3 on [the employer’s] behalf[,]” but that the employer remains liable for errors and violations by the authorized representative. Previous guidance from the federal government also specified that an authorized agent may be a friend or family member.  These clarifications are critical at a time when many employees have transitioned to working remotely in light of the COVID-19 public health crisis.

Revised Form I-9 completion guidance for F-1 students in the cap gap

USCIS now advises employers completing a Form I-9 for F-1 students in the cap gap to record the student’s expired F-1 optional practical training (OPT) EAD and the Form I-797 receipt notice for an H-1B cap petition submitted on the F-1’s behalf.  Employers will enter the I-797 receipt number as a document number in Section 2 of Form I-9. Previously, employers were advised to record the student’s Form I-20 Certificate of Eligibility, along with their expired EAD in Section 2.

As a reminder, employers must reverify the employment eligibility of F-1s in the cap gap by September 30, in advance of an H-1B cap petition with an effective date of October 1.

New procedures for reverification of employees with an automatic EAD extension

Under current rules and procedures, USCIS may grant an automatic EAD extension of up to 180 days to certain foreign nationals who have timely filed an application for renewal of their work authorization.  In addition, foreign nationals with Temporary Protected Status (TPS) may receive an automatic EAD extension if their country’s TPS designation is extended.

The latest edition of the Handbook sets forth new procedures for employers reverifying the employment authorization of these individuals. Employers will enter the new expiration date of the employee’s work authorization in the additional information field in Section 2 of Form I-9 – for example, “EAD EXT mm/dd/yyyy.” Employees should no longer be instructed to cross out the old expiration date and enter the new date in the “alien authorized until” field of Section 1 of the form.

Other key changes in the new Handbook for Employers

The new Handbook clarifies Form I-9 procedures for Native Americans born in Canada, who are authorized to live and work in the United States if they have at least fifty percent American Indian blood.  These individuals can present a Form I-551 permanent resident card or provide List B and List C documents, including certain Native American tribal documents.

The new Handbook has also been reorganized and some sections have been rewritten in simpler language.

If you have any questions about the Form I-9 process, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.