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The New I-9 Handbook: The Devil is in the Details

[Editor’s Note: today’s blog is courtesy of Dawn Lurie and Kevin Lashus of Greenberg Traurig] On January 12, 2011, Director Alejandro Mayorkas announced the release of The Handbook for Employers M-274 (Rev. 01/05/11). This 69-page handbook is the most recent update of the instructions, answers to frequently asked questions, and supplemental guidance to complete a “seemingly” uncomplicated, 1-page, Federal Form I-9 (employment verification form).  Without any fanfare, and without any comment or review period[1], the Handbook was e-mailed out to the public and posted on the government website. Overall, we are very encouraged by the additional guidance provided in the new M-274.  It is clear that U.S. Citizenship and Immigration Services (USCIS) listened carefully to the public’s comments over the past year, and worked hard to clarify some of the more contentious issues that had been unresolved. Unfortunately though, while this latest release answers many of those formerly pesky questions ranging from what to do with a name change for a recently married woman, to clarifying the fact that “conditional” residents should not be reverified, the M-274 still manages to leave some very substantive issues open ended and unresolved. Moreover, for employers with foreign nationals in their workforce, I-9 compliance has arguably become more cumbersome and time-consuming. Notable Changes First, let’s examine the 5 most important changes which may affect the way you manage I-9 compliance (especially in relation to the employees “authorized to work” in the U.S.):

    1. Clarifying the timing for completion of the Form I-9 by formalizing the “Thursday Rule” (announced here first not too long ago).  The Handbook clarifies that employers must review the employee’s documents and fully complete Section 2 of the I-9 within three business days of the first day of work for pay but not including the actual date of hire; or, Thursday if the employee begins work on Monday.
    2. The Temporary Employment Authorization table (which previously described the various combination of documents which can be accepted for certain foreign national employees) has been removed in favor of a more descriptive narrative for each of the following: refugees and asylees; employees in temporary protected status (TPS); exchange visitors and students (F, J, & M); H-1B professionals; and H-2A agricultural workers.
    3. The M-274 now includes detailed illustrations on how to complete Section 2 for exchange visitors and students (F, J and M).  In essence, USCIS now requires additional information to be recorded such as the DS-2019 and I-20 numbers. These new ways of recording documents are provided as specifics, and include instructions down to which line in Section 2 should be utilized to record information and where a new field must be noted. Employers with F, J & M employees clearly have additional work to do and more training to provide to HR staff.
    4. Restoring the ability to “port” an H-1B worker to a new company and complete the I-9, without a Form I-797 Receipt Notice from USCIS first being required (as was previously the case before USCIS introduced the 2009 version of the Handbook). So, as it was before, and as it always should have been, a foreign national in H-1B status can change employers and begin work immediately upon filing the new I-129 petition. On Page 17, the handbook states:

An H-1B employee’s Form I-94/I-94A issued for employment with the previous employer, along with his or her foreign passport, would qualify as a List A document. You should write “AC-21” and record the date you submitted Form I-129 to USCIS in the margin of Form I-9 next to Section 2. But wait, this clarification does not come cheap, you must read further. On page 18, the employer is told “you should” retain the following documents with the employee’s existing Form I-9 to show that you filed for an extension of stay on the employee’s behalf: • A copy of the new Form I-129 • Proof of payment for filing a new Form I-129; and • Evidence that you mailed the new Form I-129 to USCIS What does “should” mean in this context? Will an aggressive Immigration and Customs Enforcement (ICE) agent interpret this “should retain” as a “must retain?” Or perhaps it’s really equivalent to a “may retain” based on employer preference, similar to the copying verification documents “choice”? And what will happen to the generally accepted best practice of keeping immigration documents separately from I-9s? Just asking… Also, it is curious that USCIS did not provide guidance on when, or if, to reverify after the H-1B petition is eventually approved. We understand that employers are supposed to write “AC-21” and record the date the new petition was filed, but then what? How long is that I-9 good for? When do you reverify?  We already miss the Temporary Work Authorization chart, as convoluted as it was, which more clearly defined the validity period of these “temporary” forms of employment authorization.

  1. Employee name issues: clarification was provided to employers that they are not required to update Form I-9 when an employee changes his or her name, but they may nevertheless do so in Section 3. The Q&A section also instructs employers that they may accept a document with a different name than what was entered in Section 1 (e.g., due to married name, compound name, or misspelling) as long as the employer is satisfied that the document(s) reasonably appear to be genuine and relate to the employee.  USCIS further suggests requesting additional documentation to assist in such “satisfaction”. Did someone say OSC?  Oh and on another name related note, there is an interesting reminder for government contractors bound by the E-Verify rule that a name changer triggers the completion of a new form I-9 under the FAR rule.

Other Changes worth Mentioning

  • Temporary Protected Status (TPS) is now more clearly defined in the Handbook, which also includes a sample image 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 M-274 explains that TPS-related EADs contain an expiration date on their face, but 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 notice published in the Federal Register.
  • Additional guidance on how to reverify Refugees and Asylees is provided, notably:

Since refugees and asylees are authorized to work because of their immigration status, a refugee or asylee should write “N/A” on the line calling for an expiration date in Section 1 • You must reverify an employee’s employment authorization on Form I-9 no later than the date that the employee’s employment authorization or employment authorization document expires, whichever is sooner. • The Handbook goes on to say “Many refugees and asylees may choose to present an unexpired Employment Authorization Document (Form I-766) to employers to complete Form I-9. However, neither refugees nor asylees are required to present an Employment Authorization Document (Form I-766) to meet Form I-9 requirements.”

  • The handbook now includes an IRS-inspired retention calculator (page 23) to help employers determine the retention date for the forms I-9 of separated employees.  Although this may be useful for smaller organizations, there are more comprehensive formulas and other tools (such as those provided in electronic I-9 software) that can be more effective at tracking the retention period.
  • For organizations that are commonly involved in situations where employees continue employment with a related, successor, or reorganized employer, the handbook details the specifics, which are already contained in the Immigration Regulations.
  • The handbook also details the specifics of the final regulation pertaining to the creation and storage of electronic Forms I-9.
  • The E-Verify section of the handbook now includes references to the Federal Acquisition Regulation (FAR) amendment  and details the specifics.
  • The example of the new Form I-551 issued beginning May 11, 2010 has been included in the examples of “reasonable” authorization documents; examples of acceptable documents in the Commonwealth of the Northern Mariana Islands have been included; and, the I-20 documents that accompany I-94 or I-94As for F-1 nonimmigrant students has been correctly categorized with the examples of List A documents rather than the List C documents. In essence we are now recording a 3rd List A document, which actually makes sense.

Implications for Electronic I-9 Systems As is obvious by now, employers will need to immediately update training and compliance manuals as a result of these changes to the M-274. But, they may not be the only ones balking at the additional time and expense created by the Handbook.  Electronic I-9 providers must determine how they can replicate this new process electronically without substantially altering the content and sequence of the form. All of this “write in the margin” and “record next to the expiration date” is fine in the paper world, but is problematic to say the least when designing an electronic interface that must adhere to certain ironclad rules.  This will also certainly separate out those electronic I-9 vendors who fell into the Form I-9 business as an add-on to services they were already providing to companies, from those vendors who have legal experts, intimately familiar with the visa and immigration process, on board.  The value of a system integrating with payroll, has just gone down significantly and the value of the software developer being dexterous and able to work these new changes (to the extent they are legally required) has just gone up.   Other Lingering Questions and Our Suggestions We would be remiss to post a blog on I-9 compliance without including the many still as-of-yet unanswered questions relating to this one-page form. In no particular order, here are just some of the issues which may continue to plague employers:

  • The new M-274 provides detailed guidance on how to record certain information on the I-9 form that goes well beyond the requirements set forth by the regulations.  Will non-compliance or ignorance of these newly memorialized protocols be considered finable offenses? We can’t help but wonder whether ICE is setting up training classes for their Forensic Auditors or considering this guidance as a best practice only.  Without some of the new guidance being promulgated through regulations can it or should it be the basis for a fine?
  • By now, it’s also painfully clearly that the List of Acceptable Documents is woefully incomplete. We await an amendment to the Form I-9 document list acknowledging that there are other documents employers must accept from employees that are NOT listed on the form.
  • The M-274 handbook notes that you must reverify an employee’s employment authorization on Form I-9 no later than the date that the employee’s employment authorization or employment authorization document expires, whichever is sooner. Based on this, are employers now expected to consider that the expiration date in the Section 2 document may control the work expiration authorization and trigger reverification if it comes before the date in Section 1 (or vice versa)?
  • The FAQs located at the end of the document constantly require updates and new content and would seemingly be better off presented on the USCIS webpage with revisions and updates published on a monthly basis.  This webpage could also house the answers to all of the questions that the USCIS Verification Division receives and answers daily from individual companies.

Conclusion If ICE had not already convinced employers that the Form I-9 was not just another new-hire form that could easily be completed by an untrained employee, USCIS most certainly did with the release of the revised handbook.  As we have seen for the past two years, your business, your brand and your bank account depend on the correct completion of the Form I-9.  Employers need to take these newly minted responsibilities seriously and set aside several hours for careful review of the M-274 to determine if in fact, some, all or none of this new guidance applies to them. Because, as with most areas of immigration compliance, the devil is in the details…

[1]Page 1 of the M-274 states “this Handbook provides guidance on how to properly complete Form I-9 and answers frequently asked questions about the law as it relates to Form I-9.”  Some will argue that this guidance should have been considered as part of a larger rulemaking in order to ensure the proper notice and comment period.

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