HR Rejoice: USCIS provides long awaited update to Form I-9 Receipts Guidance
The United States Citizenship and Immigration Services (USCIS) has published an update to its Form I-9 receipt policy that provides employers with flexibility and clarity on a rule that has long defied common sense.
For many years, HR and hiring managers have struggled with a Form I-9 scenario that arises from time to time – when an employee presents a receipt for a lost, stolen, or damaged document, can the employer, within 90 days thereafter, accept an alternate document or combination of documents?
Accepting alternate documents seems logical from a business/practical perspective, particularly if the documents are valid and unexpired. But as many HR reps fully understand, logic doesn’t always enter into the equation when it comes to the Form I-9. And sure enough, the regulations only allow employers to accept the “replacement document” for which the receipt was issued (more on that below).
But after many years of listening to employers (and their counsel) complain about the rigidity of the rule, the USCIS has taken the bold move to formally modify their policies and allow employers to accept alternate documentation, despite the regulatory restrictions.
Before we dive into the details, let’s examine how this I-9 dilemma has played out in the real world.
The case of the wandering employee – a fictional account
Let’s imagine your newly hired employee, Cliff, presents a receipt for a replacement social security card, along with an unexpired driver’s license. Being the I-9 smartie that you are, you properly annotate the Form I-9 as a receipt needing follow-up within 90 days of Cliff’s first day of work for pay. So far, so good.
After a couple of months pass, Cliff comes back into your office – clearly proud of himself for remembering that he needed to provide you with a replacement document. However, Cliff pulls out a brand-new US passport from his bag, and says, “Still waiting for my SS card, but in the meantime, I got a US passport. Can’t wait to go backpacking in Europe this fall!”
As an HR manager, you might assume that accepting the US passport is perfectly fine, as it demonstrates both identity and employment authorization. But for many years, the Department of Homeland Security has had a different opinion – driven by the regulations.
Receipts for Lost, Stolen or Damaged Documents – According to the Regulations
The I-9 regulations, codified at 8 CFR §274a.2(b)(1)(vi), specifically provide that an employer must accept a receipt for the application for a replacement document in lieu of the required document as long as each the following is true:
- The employee is unable to provide the required document within 3-days of the employee starting work for pay because the document was lost, stolen, or damaged;
- The employee presents a receipt for the application for the replacement document within that same 3-day window; and
- The employee presents the replacement document within 90 days of the hire or, in the case of reverification, the date employment authorization expires.
The M-274 Handbook for Employers has tracked the regulations, advising employers that they must request and accept the replacement document for which the receipt was issued.
In response, employers (and their counsel) have sought guidance from DHS and the Immigrant and Employee Rights division (within the DOJ) on how to handle some of the thornier issues which can sometimes arise – especially when an employee changes immigration status:
- For example, employee presents a receipt for a lost, stolen, or damaged EAD, and in the interim, adjusts their status to lawful permanent resident. In this scenario, the employee would be unable to present the new EAD.
- Or, an employee presents a receipt for a lost, stolen, or damaged green card, and in the interim, naturalizes to become a US citizen.
COVID-19 delays, government office closures, and irregular work schedules have also exacerbated this problem – with many employees still waiting to receive a replacement document on an application that was submitted pre-pandemic.
USCIS issues new guidance for handling alternate receipt documentation
Yesterday, the USCIS sent an email to stakeholders informing them of a new flexible policy for updating Form I-9 receipts. Within the email, the agency acknowledged the difficulties faced by employees who are unable to present a replacement document for a receipt, due to document delays, changes in immigration status, or other factors.
Over the past several months, the USCIS worked with its interagency partners, including ICE and IER, to come up with the following update to its policies:
(1) If an employee does not present the original document for which the previously provided receipt was issued but presents, within the 90-day period, another acceptable document (or documents) to demonstrate his or her identity and/or employment authorization, employers may now accept such documentation.
(2) In cases where an employee presents a document (or documents) other than the actual replacement document, the employer should complete a new Section 2 and attach it to the original Form I-9. In addition, the employer should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment.
Last week, the USCIS also quietly updated the M-274 handbook for employers with this same information. Employers can find this guidance in Section 4.3 of the Handbook.
Although not specifically mentioned by USCIS, this new policy would also apply to receipts for lost, stolen, or damaged documents provided by an employee during the Form I-9 reverification step (for employees with expiring work authorization). If an employee later provides an alternate document for reverification after initially providing a receipt for a lost, stolen, or damaged document, the employer should complete a new Section 3 to record the substitute document.
Next Steps for Employers
In light of this change, employers should take steps to update their own Form I-9 and E-Verify policies (or “SOPs”) to carefully document this new allowance. In doing so, I would recommend coming up with a standard/boilerplate note that can be inserted in the Additional Information box as required under the revised guidelines.
In addition, employers should also update their Form I-9 training materials to make sure this process is accounted for when instructing new HR representatives or other personnel who will handle Form I-9 updates. Completing a new Section 2 (by itself) is generally considered a non-standard practice, so employers may want to include some exemplars as well.
Last but not least, employers utilizing electronic I-9 and E-Verify applications should investigate how they will manage receipt updates when alternate documentation is presented. Users of the Guardian application by LawLogix will see an announcement and associated help page within the application which describes the process.
Have questions regarding today’s alert? Please drop us a line and let us know if we can assist in helping your organization manage its Form I-9 and E-Verify responsibilities.