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The United States Citizenship and Immigration Services (USCIS) has released a new version of the manual for employers, Guide to Completing Form I-9 (M-274), which is now available on the USCIS website. The M-274 is an essential compendium of I-9 compliance information and instructions, and is designed to complement employers’ understanding and knowledge of the various employment eligibility verification obligations.

USCIS released this most recent version of the M-274 as part of the new form I-9 (rev. 11/14/16), which is to be used by all employers as of January 22, 2017. This practice notice summarizes the most significant changes to M-274 and provides examples of updated new policy guidance affecting the completion and retention of the I-9.

Automatic EAD extensions

The most significant change to the M-274 is the documentation process for the Automatic Extension of Employment Authorization Documents (EADs) for certain foreign employees working in the United States. Department of Homeland Security (DHS) rule that provides additional benefits and flexibility to highly skilled non-immigrant workers in the United States. is in the same category as the previous EAD.

The new M-274 describes the different categories of foreign nationals currently eligible for these self-expanding EADs and defines the process for reviewing the appropriate documentation and recording the information on the I-9 form. Employers familiar with “TPS Extensions” (affecting employees in Temporary Protected Status) will recognize the overall process, which involves updating Sections 1 and 2 to reflect the automatic extension date. The review process appears to go a little further, however, as employers are also required to more carefully review the underlying documentation (both the EAD and the receipt indicating the renewal filing) for s ‘ensure that the person is fully qualified.

Pages 13 to 15 [of the M-274] include a detailed description of how the self-expanding EADs are to be completed on the Form I-9. M-274 also refers to the self-extended EAD rule on page 16 (verification), page 18 (refugees and asylums), pages 25-26 (non-immigrants requesting extensions of stay), page 44 (acceptance of ‘an expired document), and page 48 (when the work authorization expires).

Additional I-9 rules for certain foreign employees

In addition to the automatic EAD provisions, M-274 includes several other changes that will impact employers when hiring foreign employees with temporary work authorization. Here are a few areas to note:

1. E-Verify STEM: USCIS now explicitly notes (in accordance with its recent guidelines) that employers must use E-Verify at the specific hiring site where it employs an F-1 STEM student who has received a 24-month extension of their optional practical training. (see page 21).

2. F-1 students in CPT: An I-20 form acceptable to F-1 students in practical curriculum training (CPT) must have all employment authorization fields completed. These fields include employment status, type of employment, start and end date of employment, and employer name and location (see page 21).

3. Extensions H-1B: As part of documenting an H-1B extension and automatic 240-day work extension, the M-274 now also states the following on page 23: “Your employee may update section 1 by crossing out the expiry date of his work permit noted in the certificate. Enter the new date on which the automatic extension of the work authorization ends. Initial and date this update in the margin of section 1. ”

4. Extensions of stay: M-274 also includes new instructions relating to the documentation that must be retained when filing an extension of stay for an eligible employee. Specifically, page 25 states, “After receiving Notice of Action I-797C, which records the amount of the filing fee submitted and acknowledges receipt by USCIS of the new Form I-129 request, it no It is not necessary to keep a copy of the Form I-129 application, proof of payment and the postal receipt for Form I-9 purposes. You must keep the Notice of Action I-797C to show that you have requested an extension of stay on behalf of the employee.

Form I-9 Retention

M-274 also includes a new provision for retaining I-9s for employees who have never started working for pay. Specifically, USCIS states the following on page 31:

“Employers must keep an I-9 form for each person hired. This requirement applies from the date of hire, even if the employment ends shortly after hiring, the hired employee never completes his work for pay, or never complete Form I-9. “(emphasis added)

Based on the above, USCIS appears to claim that employers should keep I-9 forms for employees whether or not they start work or receive a paycheck. Employers should note, however, that this new instruction conflicts with 8 CFR 274a.2, which sets out an employer’s I-9 obligation to people who provide services or work for pay or remuneration. A person who never starts working for pay would probably not fall into this category (and therefore no I-9 obligation exists). Additionally, Immigration and Customs Enforcement (ICE) officials previously noted that an employer is not required to keep an I-9 form for a person who never begins working for pay, and therefore would not be required to keep an I-9 form. not required to produce the I-9 in case of control.

Given the apparent contradiction between this new directive and the regulations, employers are advised to work with their legal counsel before adopting strategies regarding the retention (or destruction) of I-9s for those who do not. have never started working for pay.

John Fay is vice president and general counsel of LawLogix, a division of Hyland in Phoenix. © 2017 LawLogix. All rights reserved. Republished with permission from LawLogix.

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