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Understanding the April 2020 Changes to the Form I-9 Handbook (M-274)

On Tuesday, April 27, the United States Citizenship and Immigration Services (USCIS) released a substantial revision to the Handbook for Employers, Guidance for Completing Form I-9 (M-274). For I-9 fanatics and aficionados alike, the posting of a new I-9 handbook (or simply “M-274” in I-9 speak) is akin to JK Rowling releasing a new Harry Potter sequel, albeit with slightly less magic and intrigue.

If you’re wondering why that might be the case, consider this – the M-274 is the official “guidance” document when it comes to I-9s. And outside of the regulations and the Form I-9 instructions, the M-274 is the primary resource used by our friends at Immigration and Customs Enforcement (ICE) during their Form I-9 inspections. So in other words, if you’re in HR, and want to be “I-9 compliant,” you had better know about this resource.

And what a resource it is. If you enjoy reading long government manuals on process and procedure, we should probably have lunch some time (at least 6 feet apart of course). However, if you’re a “normal” human being who doesn’t relish such delights, then not to worry. I’ve taken a fine-tooth comb to this latest M-274, with the goal of unearthing the key changes which may impact your I-9 process and procedure. It’s also worth noting that the USCIS provided their own high-level summary as well, which is also included at the very end of the handbook.

The M-274: Executive Overview

If you’re an HR executive, or perhaps report to an HR executive, you might simply want to know what’s changed in the I-9 handbook, and whether it’s important. While there are quite a few revisions from the previous M-274 version, most of the edits are highly procedural in nature. Nevertheless, even small procedural changes can have a big impact, so it’s always important to stay on top of the latest developments.

With that in mind, and from a very high-level 30,000-foot view, the April 2020 M-274 revisions accomplish five things:

  • Incorporates the Form I-9 instruction revisions that are included in the latest Form I-9 edition (rev 10/21/19), which by the way, must be used for all new hires as of May 1
  • Modifies and standardizes the process for completing I-9s when a new hire or existing employee has an “extended” EAD
  • Clarifies some concepts, such as how certain F-1 and J-1s should complete Section 1 and how to calculate the Form I-9 retention period
  • Introduces new guidance for areas that probably don’t come up very often in a typical organization, such as how to verify employment authorization for Native American employees born in Canada and information for state employment agencies that choose to complete I-9s for individuals they refer and for employers of individuals referred by a state employment agency
  • Improves the overall readability by removing some duplicate content and incorporating frequently asked questions within the body of the handbook

The Revised M-274: What you need to know

If you’ve made it this far into the article, you’re probably an HR representative, an attorney, or just an overall compliance wonk who needs to know (and understand) the nitty gritty details. As mentioned above, the M-274 changes are mostly procedural in nature, and so the following should be carefully reviewed as part of your ongoing I-9 compliance initiatives.

To make this article easier to read (and hopefully more useful), I’m highlighting each major change below and indicating whether this calls for a change in your policy, a discussion with your legal counsel, or is simply just “good to know.” Note, this section will not cover every change in the M-274, but rather, just the ones which would impact most organizations. Let’s begin!

1
DESIGNATING AN AUTHORIZED REPRESENTATIVE: Section 2.0 of the Handbook
What’s New In keeping with the recent changes to the Form I-9 instructions, the USCIS updated the M-274 to reflect that employers may designate, hire, or contract with any person to complete, update or make corrections to Section 2 or 3 on the employer’s behalf.

We’ve been discussing the use of authorized representatives (sometimes referred to as “remote agents”) quite a bit over the past few months in light of the COVID-19 health crisis and the shift by most employers to a remote workforce. You can see all of our COVID-19 blog posts here.

Action Needed Update your policy AND speak with counsel

If you haven’t already, make sure to update your remote I-9 standard operating procedures and speak with counsel to formulate a plan for hiring individuals remotely (in the time of COVID-19 and beyond). Check out our recent article on tips and suggestions for creating a remote I-9 SOP.

2
USE OF PREPARER AND/OR TRANSLATOR IN SECTION 1: SECTION 3.0 of the Handbook
What’s New According to the USCIS summary of changes, the M-274 supposedly includes a “major clarification” in the purpose of the Preparer/Translator Supplement. However, by my read, the M-274 language has not substantially changed. The purpose of the supplement (now and as before) is for those instances when multiple people provide assistance to the employee in completing Section 1, and extra spaces are required to record the additional person’s name and certification.
Action Needed No action required

In my experience, having multiple preparer and/or translators is very rare, and ultimately, the guidance remains the same.

3
RECEIPTS AND REPLACEMENT DOCUMENTS: SECTION 4.3 of the Handbook
What’s New In the context of accepting receipts (i.e., when the employee has a lost, stolen, or damaged document), the USCIS modified their instructions for how to update the I-9 when the replacement document is eventually presented by the employee.

The USCIS now indicates that employers should cross out the word “Receipt” (that was annotated when the I-9 was initially completed), and enter the replacement document information into the Additional Information field in Section 2. Previously, the M-274 simply noted that employers should enter replacement doc information “into Section 2” without indicating where.

However, notably absent from the M-274 revisions is the usual instruction to initial and date this change (which is generally a best practice for any annotations on the I-9 after its original completion). The USCIS even indicates that initials/dates are required for replacement document updates on their I-9 Central website here.

Action Needed Consider revising your process for updating I-9 receipts

Employers may wish to update their internal practices and training materials to indicate that replacement document information should be entered in the Additional Information field. However, I would not consider this to be an urgent or high priority type of change, as DHS will likely accept annotations outside of the Additional Information box too, as long as they are clear and legible. Specialized electronic I-9 systems facilitate this quite nicely.

I would strongly recommend that employers continue to annotate any updates with initials and dates, so it’s clear to an ICE inspector when the change was made.

4
AUTOMATIC EAD EXTENSIONS: SECTION 4.4 of the Handbook
What’s New The USCIS has changed the process for updating I-9s of existing employees with EADs that are extended, either by the filing of an EAD renewal application (with I-797C receipt notice) or through publication in the Federal Register (for TPS employees).

As modified, employers should write “EAD EXT” and the 180-day auto-extended date in the Additional Information field in Section 2. For example, EAD EXT mm/dd/yyyy.

Previously, employers were instructed to draw a line through the old expiration date, write the new expiration date in the margin of Section 2, write EAD EXT in Section 2, and initial and date the correction.

In addition, the USCIS has removed the requirement (or suggestion) that employees cross-out the “employment authorized until” date in Section 1, and replace it with the auto-extended date. This change is welcome news to employers who no longer need to take this extra administrative step.

Action Needed Consider revising your process for updating EAD auto-extensions

Employers may wish to update their internal practices and training materials to indicate that EAD extension information should be entered in the Additional Information field. As before, I would not consider this to be an urgent or high priority type of change, as DHS will likely accept annotations outside of the Additional Information box too, as long as they are clear and legible. And once again, I would recommend that employers continue to annotate such changes with their initials and the date of update.

5
F-1 STEM OPT EXTENSIONS: SECTION 6.4.2 of the Handbook
What’s New The USCIS has provided more detailed instructions for documenting the 180-day automatic extension available to F-1 students with STEM degrees who are applying for a 24-month extension of their optional practical training. First, with regards to new I-9s, the M-274 indicates that employers should complete Section 2 by entering the expired EAD information in the Document Title and Document Number fields, and then entering a date which is 180 days from the Card Expires date in the EAD in the Expiration Date field. Lastly, employers should write “EAD EXT” in the Additional Information field.

Previously, the M-274 indicated that employers should enter the date the EAD expired in the expiration date space.

The M-274 now also includes instructions for updating an I-9 of an existing F-1 STEM OPT employee with a 180-day extension, noting that employers should enter EAD EXT and the date 180 days from the Card Expires date on the EAD in the Additional Information field. For example, EAD EXT mm/dd/yyyy.

Action Needed Consider revising your process for updating F-1 STEM OPT extensions

Employers may wish to update their internal practices and training materials to indicate that EAD extension information should be entered in the Additional Information field. As before, I would not consider this to be an urgent or high priority type of change, as DHS will likely accept annotations outside of the Additional Information box too, as long as they are clear and legible. And once again, I would recommend that employers continue to annotate such changes with their initials and the date of update.

6
F-1 CAP-GAP EXTENSIONS: SECTION 6.4.2 of the Handbook
What’s New The USCIS made a couple of important changes with regards to documenting a so-called “Cap-Gap” extension, a regulatory benefit which allows students with pending or approved cap-subject H-1B petitions to remain in the U.S. and continue to work in F-1 OPT status until the start date of their approved H-1B employment period in October.

First, the M-274 now indicates that you can accept the employee’s expired EAD in combination with a Form I-797C, Notice of Action as evidence of a timely filed H-1B petition to change the student’s status from F-1 to H-1B with an Oct. 1 start date.

Previously, the M-274 indicated that for I-9 purposes, employers should inspect the expired EAD along with a Form I-20 endorsed by the student’s DSO recommending the cap-gap extension. Many employers found the I-20 requirement overly burdensome since some schools (even large ones) refused to provide it to the employee when requested.

The second important change concerns how the I-9 should be documented in Section 2. As revised, the M-274 now indicates that you should enter “EAD” in the List A column, record the Form I-797C receipt number in the Document Number field, enter Sept. 30 and the year you filed the petition in the Expiration Date field, and write CAP-GAP in the Additional Information field.

Previously, the M-274 indicated that employers should enter the EAD document number and the date the EAD expired in Section 2.

Action Needed Consider revising your process for updating F-1 Cap-Gap extensions

 

Employers may wish to update their internal practices and training materials to indicate that the I-797C receipt number should be entered in the List A document number field for the EAD AND the verifier should write September 30th and the year the petition was filed in the Expiration Date field.

In addition, employers should speak with their immigration counsel to discuss other thorny issues, including what to do if the I-797C receipt notice has not been received prior to the EAD’s expiration date.

 

7
240-DAY EXTENSIONS: SECTION 6.7
What’s New Under the regulations, certain nonimmigrants are authorized to continue working for their employer for up to 240 days while USCIS processes a timely filed Form I-129 extension, or until USCIS makes a decision. As before, the M-274 instructs employers to write “240-day Ext.” and the date you submitted Form I-129 to the USCIS in the Additional Information box in Section 2.

What’s new is that they removed the “suggestion” that the employee update Section 1 as well with the 240-extension period (in the “alien authorized to work until” expiration date field).

As with the EAD and TPS changes, employers will be very happy to have one less administrative task to perform in connection with a 240-day extension.

Action Needed Consider revising your process for updating 240-day extensions

Employers should update their internal practices and training materials to remove the requirement for employees to amend the Section 1 alien authorized to work until date (if that was your former practice). Many employers actually never adopted this step (since it seemed optional), in which case, no change will be needed.

8
FORM I-9 RETENTION: SECTION 9.0 of the Handbook
What’s New The Form I-9 retention obligations have long been a source of frustration and confusion for employers, primarily because the actual “purge date” varies based on how long the employee had been with the organization.

Both the regulations and the Form I-9 instructions indicate that once an individual’s employment ends, the employer must retain I-9 for either 3 years after the date of hire (i.e., first day of work for pay) or 1 year after the date employment ended, whichever is later.

While the revised M-274 does not change the retention rule, it does provide employers with a new way of thinking about it. Specifically, the handbook instructs employers to separate termed employees into two different buckets.

(1) If the employee worked for less than two years, you should retain their form for three years after the date you entered in the First Day of Employment field.

(2) If the employee worked for more than two years, you should retain their form for one year after the date they stop working for you.

Action Needed Review Form I-9 Retention Policy

While the Form I-9 retention rules have not changed, employers should nevertheless review their Form I-9 retention policies to make sure they are purging I-9s when allowable. As we’ve often stated, purging old I-9s is the “one free lunch” in I-9 compliance because it provides you with the opportunity to rid yourself of some (potentially) error-filled and incurable I-9s.

Final Takeaway

As immigration compliance continues to be an important topic in the US, HR must be vigilant in keeping up-to-date with the latest and greatest government guidance. And in the I-9 and E-Verify world, that means fully understanding (and sometimes dissecting) the M-274 Handbook.

In addition, experts recommend reviewing current policies and practices (ideally with counsel) to ensure consistency throughout the organization; conducting a self-audit to fix mistakes and omissions; and adopting smart electronic I-9 processes which ensure compliance with ever-changing (and often unpredictable) government rules.

Do you have questions or comments relating to the M-274?  Please feel free to contact us here. You can also reach me by emailing at the address provided in my bio link below.


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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