Latest I-9 Handbook Reveals New Guidance for Employers

[Editor’s Note: today’s blog is courtesy of Bernard Wolfsdorf and Tien-Li Loke Walsh of the Wolfsdorf Immigration Law Group.]

In early June of this year, the USCIS released a revised version of the I-9 Handbook for Employers (known affectionately as “the M-274”). This version (Rev. 06/01/11. All prior versions obsolete) promised additional guidance on how to enter an employee’s name, more examples of acceptable documents, and information regarding employment-authorized nonimmigrants. Many employers scoured through the 69-page document, looking for those changes and other nuggets of information which dictate how to prepare (or review) I-9s going forward. Like many, you may have exclaimed, “Wait a minute. I don’t see any of these changes at all. Do I need a special decoder ring to see what’s new?”

So the good news is that you weren’t going crazy – apparently, the USCIS uploaded the wrong version of the M-274 in early June, which was missing all of the promised changes mentioned above. Well finally the corrected version has now been uploaded to the site, and so it’s time once again to get out that magnifying glass and start comparing the new M-274 with the previous versions.

Fortunately, you’re in luck! We’ve just made it really easy for you after carefully reviewing all of these compliance tidbits, which we happily share below. So sit back, relax, and read-on for the latest guidance in completing America’s most deceptively complicated one-page form.

Completing Section 1 – Page 4

The USCIS added the following additional guidance for completing the employee’s name (primarily, I believe, to be consistent with E-Verify validation rules):

  • If you have two last names (family names), include both. If you hyphenate your last name, include the hyphen (-) between the names.
  • If you have two first names (given names), include both. If you hyphenate your first name, include the hyphen (-) between the names.
  • Include your middle initial, if applicable

Since so many employees have multiple first and last names, some hyphenated, some not, this clarification is hugely important.

Recording TPS beneficiary EAD auto-extensions for existing employees – page 11

In the January 2011 version of the Handbook, the USCIS provided additional guidance on completing I-9s for individuals in Temporary Protected Status (TPS), which included sample images of an Employment Authorization Document (EAD) that has been issued under either the A-12 (Temporary Protected Status) or C-19 (Temporary Treatment Benefits) categories. The January 2011 handbook also instructs employers that a TPS beneficiary may continue to work after the expiration date if the Federal government has temporarily extended the validity date of the EAD through a notice published in the Federal Register. What was missing from these instructions? Well, how exactly are employers supposed to annotate the I-9 when the EAD expires, but the employee is still allowed to work through an auto-extension? Do they reverify in section 3? Complete a new I-9, or merely throw their hands up in utter confusion?

The June M-274 now provides clear guidance on page 11:

If an existing employee’s EAD has been extended, draw a line through the expiration date for the EAD written in Section 2; write the new date to which the EAD has been extended above the previous date; write “TPS Ext.” in the margin of Section 2 and initial and date the correction.

Then, when the automatic extension of the EAD expires, you must reverify the employee’s employment authorization by entering the document name, number and expiration date in Section 3 of Form I-9 or a new Form I-9, if necessary. But wait, there’s more! Recently, the USCIS published a notice in the Federal Register extending TPS for Haitian nationals through January 22, 2013 and auto-extending the validity of EADs issued under TPS through January 22, 2012. As part of that Federal Register notice, USCIS also provided I-9 instructions which differ slightly from the M-274 guidance noted above. Specifically, the Federal Register notes:

If you are an existing employee and you presented an EAD that was valid when you first started your job, but that EAD has now been automatically extended, you and your employer should correct your previously completed Form I–9 as follows: (1) For section 1, you should: a. Draw a line through the expiration date in the second space; b. Write January 22, 2012, above the previous date; c. Write ‘‘TPS Ext.’’ in the margin of section 1; and a. Initial and date the correction in the margin of section 1. (2) For section 2, employers should: a. Draw a line through the expiration date written in section 2; b. Write January 22, 2012, above the previous date; c. Write ‘‘TPS Ext.’’ in the margin of section 2; and d. Initial and date the correction in the margin of section 2.

Did you catch the distinction? The Federal Register notice goes further than the M-274 and indicates that the employee must also make corrections to section 1 to indicate their TPS status has been extended. This discrepancy was recently mentioned during an I-9 “listening session” with the government, so hopefully DHS will clarify the correct procedure for TPS going forward. In the meantime, employers may wish to follow the FR and amend both sections 1 and 2 – to be absolutely safe. So just when you thought it was safe to follow the M-274, remember to read your Federal Register regularly, or make sure to read this blog.

Rehiring an employee – page 19

The I-9 rule for rehiring employees involves yet another time calculation issue for employers. The rule has always been that if the employer is rehiring an employee within 3 years of the original hire date, the employer can complete a new I-9 or rely on a previously completed Form I-9 and update section 3. This is permissible if the employee had an interruption in employment, but the employment was nevertheless continuing as there was a reasonable expectation of employment. Examples of continuing employment include approved leave for study, illness or pregnancy, seasonal employment, as well as continuing employment with a related, successor or reorganized employer, provided the employer obtains and maintains the I-9s and records from the previous employer. The complex question here is what happens if the employer rehires the employee several times over a span of years (aka the “revolving door” employee). Do you get to calculate the 3 years from the “original hire date” or from the last time the person was hired? Well, USCIS has now clarified the issue at the bottom of page 19:

If you rehire an employee within three years of the date that his or her previous Form I-9 was completed, you may complete a new Form I-9 or you may be able to rely on the previously completed Form I-9 in certain circumstances (emphasis added in bold).

As a practical matter, this may not change your I-9 procedure all that much. Many employers have already been following this practice, and those using well-designed electronic I-9 software, benefit from a guided approach which will be able accurately calculate whether a new I-9 is needed for a specific rehire. The clarification is particularly beneficial for employers of seasonal workers as it is easier to complete Section 3 when updating or reverifying employment authorization.

Reverifying an employee’s employment authorization – page 19

USCIS made a very minor change to the reverification instructions on page 19 (which are closely intertwined with the rehire instructions as well) by adding the following point #4: “You must reverify the employee on a new Form I-9 if the version of the form you used for the previous verification is no longer valid. Please check for currently valid Form(s) I-9.”

The instruction itself is nothing new. The previous M-274 had a very similar note, but it was not as specific as to making clear that this restriction on using old versions of the form is prohibited for reverification of employment authorization, but that old versions may be used for updating. That note read as follows: “You must complete a new Form I-9 if the version of the form you used for the previous verification is no longer valid. Please check for the currently valid Form(s) I-9.”

Why the change? It appears  USCIS wanted to make it clear that if you rehire an employee within 3 years of the previous I-9, and in the meantime a new form version has come out, you don’t have to complete a new I-9 if you’re simply “updating” the form because the prior work authorization is still valid, as opposed to having to reverify the persons new right to be employed and show new evidence. This makes sense because when reverfying work authorization or acceptable identity documents, the list of acceptable documents may have changed and the government wants to make sure there is compliance with the latest list of acceptable documents. USCIS refers to “updating” in the context of a change of name for example. However it refers to “reverification” as the processes for ensuring persons have continuing work authorization. Confused yet?

Completing section 1 for Refugees and Asylees

The January M-274 provided additional guidance on completing I-9s for refugees and asylees, both of whom are authorized to work pursuant to their immigration status. (Refugees are persons fleeing persecutions who apply from abroad whereas asylees apply in the U.S. or at a port of entry). The problem was one of the Q&As in the back of the book had many hiring managers scratching their heads. Specifically, the answer to Question 50 on page 46 read, “Such individuals should write “N/A” in Section 1 next to the box indicating “An Alien Authorized to Work.” Next to the box? And what about the second part of the question which asks about the expiration of the work authorization? Is that supposed to be left blank? Fortunately, the revised M-274 now clarifies that asylees and refugees should “check an alien authorized to work, write the Alien Number or Admission Number in the first space, and N/A in the second space, because their employment authorization does not expire.” This is hugely important as almost 100,000 refugees and asylees were admitted in 2010 alone and the date of expiration of a refugee or asylee’s work authorization document is irrelevant.

Other Changes

USCIS also made the following additional changes to the M-274:

  • Added an additional Umbrella Permit (Category 240P) for Employers and Employees Located in the Commonwealth of the Northern Mariana Islands (CNMI). This puts them in the same position as refugees and asylees in not having to worry about or calendar work authorization expiration dates. (page 49)
  • Added additional information and document examples to pages 56 and 58, including:
    • A list of the legends that may be found on an Employment Authorization Documents (EAD). Specifically, they include “Not Valid for Reentry to U.S.”, “Valid for Reentry to U.S.” or “Serves as I-512 Advance Parole.” The newly issued combination EAD and advance parole travel document was confusing to both employers and immigration inspectors where only work authorization was issued, and not advance parole travel permission based.
    • Example of the new “combo-card” that combines employment authorization and travel authorization in one document (page 56). One example shows the EAD work authorization option only, whereas the other includes the right to work, and to travel.
    • An example of a Form I-94 that contains an F-1 and “D/S” notation (page 58)
    • An example of a passport from the Republic of the Marshall Islands (page 58)
    • Removed references to Form I-797C (pages 18 and 41).
    • Removed Q-1 from the list of employees eligible for a 240-day extension (page 18).


Now that you have the latest (and greatest?) I-9 guidance in your hands, it’s time to update those Standard Operating Procedures (SOPs) and I-9 training guides to ensure that your policies and practices are in line with the new rules. In today’s heightened world of immigration scrutiny and enforcement, it’s absolutely imperative that organizations (both large and small) engage in persistent and comprehensive evaluation of their I-9 policies and practices. If you don’t have an SOP in place or the time to engage in proper training, consider contacting experienced immigration counsel to discuss your unique hiring situations, supervise an in-house audit of your existing I-9s, or help develop a training plan that you can re-use at your organization.

Remember: it’s never too early to get your house in order, but it will definitely be too late when ICE comes knocking at the door with a copy of the latest M-274 in hand…