The United States Citizenship and Immigration Services (USCIS) has recently issued new guidance for employers on Form I-9 compliance. The Handbook for Employers (Rev. 1/22/2017), also known as the M-274, has been updated and revised to provide guidance to employers on how to complete the most recent version of the Form I-9, Employment Eligibility Verification. The Form I-9 must be completed for every worker hired after November 6, 1986, regardless of whether the employee is a U.S. Citizen, making the Form I-9 the most common immigration-related paperwork for U.S. employers.
The latest M-274 provides detailed instructions related to developments since the publication of the prior version of the Handbook in 2013, including the 24 month extension of Optional Practical Training for STEM-OPT, the 180-day automatic extension of employment authorization for certain individuals who timely file an EAD renewal, and the new Form I-9 (Rev. 11/16/2016), which is now mandated for use. The Handbook also contains valuable new information regarding proper verification procedures in order to avoid allegations of discrimination.
Ten of the most salient new guidelines outlined in the revised Handbook include:
- For E-Verify employers, instructions on how the employee completes the fields in Section 1 of the Form I-9 if the employee has applied for but has not yet received a Social Security number (pages 2 and 4);
- How to mark the appropriate box in the substantially revised Preparer and/or Translator Certification block of the Form I-9, even if a preparer or translator did not assist the employee (page 4);
- For remote hire situations, how to properly complete the Form I-9 through a third party, such as a personnel officer, foreman, agent, or anyone else acting on the employer’s behalf, including a notary public (page 5);
- A more clear requirement that the person who physically meets with the employee and examines the original documents must be the same person who attests and signs Section 2 of the Form I-9 (page 5);
- Instructions regarding the use of the new “Additional Information” space on the Form I-9 (page 7);
- How to confirm an employee’s eligibility in certain circumstances for the recently enacted automatic 180 day extension of employment authorization and how to document the employee’s extension on the Form I-9 for category codes A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31 and A12 or C19 (pages 13-15);
- How to complete the Form I-9 for F-1 students eligible for an H-1B “Cap-Gap” extension or 24-month extension of employment authorization pursuant to STEM-OPT (Page 21-23);
- Additional documentation that must be maintained with the Form I-9 in connection with applications for extensions for certain non-immigrant visa categories, including CW-1 H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, R-1, TN, A3, E-1, E-2, E-3, and G-5 (pages 24-25);
- How to properly correct errors identified on the Form I-9 and preserve an audit trail (pages 29-30);
- An introduction to the Department of Justice’s new Immigrant and Employee Rights Section (formerly the Office of Special Counsel) and how to avoid unlawful discrimination and prohibited practices (pages 35-39, 49-41).
For a comprehensive comparison of the old M-274 and the new M-274, see the Table of Changes.
In light of this new guidance, employers should consider reviewing their existing employment-eligibility verification processes and make updates as needed. If you would like more information on the updated Employer Handbook or on implementing potential changes to your Form I-9 policies and procedures, please contact your Foster attorney.