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Recent Form I-9 Guidance: H-1B Employees, Laminated SS Cards and More

During the past couple of weeks, I-9 aficionados across the country have been talking about the release of the new Form I-9 in 2020 – which was admittedly a somewhat anticlimactic event. Employers waited for approximately 5 months to receive a new form version that was virtually identically to the last. For sure, there were some changes to the Form I-9 instructions (which you can read about in this SHRM article), but by and large, the biggest takeaway is that employers need to use the new version starting on May 1, 2020.

But as HR and compliance managers know all too well, the United States Citizenship and Immigration Services (USCIS) has the means to update Form I-9 and E-Verify guidance at any time, through “I-9 Central,” their aptly named I-9-focused web portal. I first wrote about I-9 central almost nine years ago (when both my hair and memory were less gray), and the site has steadily grown in size, with even more I-9 information, videos, and resources for employers.

The “Questions and Answers” page, in particular, provides A LOT of additional information concerning the I-9 process – based largely on actual questions posed to the USCIS from the public. The chief problem with this site (in my humble opinion) is that the information can feel overwhelming and somewhat disconnected from the other I-9 policy guidance found in the M-274 Handbook for Employers and the Form I-9 instructions.

In an effort to uncover (and dust off) some of these useful tidbits, we’re going to briefly discuss four recent Form I-9 policy updates that were published in 2019 (two in today’s blog, and 2 in next week’s blog). Speaking of blogs, if you like timely I-9 updates delivered via email to your inbox, make sure you subscribe here.

And as is always the case, employers should review Form I-9 updates carefully to determine whether they impact any of their existing policies and procedures. This goes for employers using electronic I-9 systems too. Let’s begin!

Acceptable Documents for an H-1B Employee

If you’re relatively new to the “alphabet soup” of US immigration, the H-1B is an employer-sponsored visa program for individuals who will work in a so-called “specialty occupation” for a temporary period of time. H-1B employees are authorized to work only for the employer who filed the H-1B paperwork on their behalf – and for this reason, your organization will already be familiar with this individual when it comes time to complete the Form I-9.

However, questions often arise regarding which documents can be accepted/recorded in Section 2 or Section 3 (during a later reverification). The Lists of Acceptable Documents are completely silent on this issue – only providing a laundry list of potential options. Nevertheless, most employers know and understand that an H-1B employee can present a valid foreign passport with a Form I-94 that has the same name as the passport and contains an endorsement of the employee’s H-1B status. This combination is a valid List A document, showing both identity and work authorization.

Source: Guardian Electronic I-9 System

But what happens if your H-1B employee doesn’t bring their foreign passport, and instead simply has a driver’s license and the electronic Form I-94 printout? I-9 central now provides the following:

An H-1B employee who is verifying continued H-1B employment authorization may choose to present his or her Form I-94 as List C #7 document.

Last Reviewed/Updated: 09/24/2019

A few things to note. A List C #7 document (Employment authorization document issued by the Department of Homeland Security) is commonly referred to as a “catch-all” designation, since it can refer to a lot of different documents issued by DHS that confer or demonstrate work authorization. And since the Form I-94 for an H-1B employee falls into this bucket, your employee can indeed present both a driver’s license (for identity) and the Form I-94 for work authorization.

Now you may have noticed the Q/A is specifically talking about reverification of an existing employee – i.e., the completion of Section 3. Despite the narrow scope of this particular question/answer, employers can also choose to accept a Form I-94 as a List C #7 document in Section 2 as well – this has been asked/answered in AILA liaison committee meetings.

Last but not least, this same rule should also apply to other nonimmigrant visa categories where the employer has filed an I-129 petition on behalf a temporary worker.

Laminated Social Security Cards

The unrestricted Social Security Card is one of the most frequently presented documents during the I-9 process, evidencing an employee’s authorization to work in the US. Most employers know that in order to be acceptable for I-9 purposes, the SS card must not have any “restrictions” such as “Not Valid for Employment,” “Valid for Work only with INS Authorization,” or “Valid for Work only with DHS Authorization” printed on the card.

But what if your employee presents a SS card which has been laminated (likely to protect the often-fragile cards from wear and tear)? Can you accept this document?

If you’re confused by this question, join the club. Over the years, the USCIS has had varying positions on whether a laminated card was acceptable. For a period of time, the answer was no. Then, the agency’s position morphed into “they are acceptable unless the card (on the back) indicates that it was “not valid if laminated.” And sure enough, many cards had that notation.

For the past few years, however, the USCIS has adopted a more relaxed position that a laminated card is acceptable, regardless of what indicates on the back of the card. This policy is now officially on the I-9 central website here:

Yes. You may accept a laminated Social Security card as a List C document even if it states “not valid if laminated” or “do not laminate” as long as the card reasonably appears to be genuine and to relate to the person presenting it.

Last Reviewed/Updated: 03/20/2019

That’s it for today! Stay tuned for next week’s blog where we’ll discuss special I-9 rules for conditional permanent residents and answer a thorny question about withholding an employee’s last paycheck.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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