As of May 1, 2020, employers are required to use the newest edition of the Form I-9, Employment Eligibility Verification, which was introduced on January 31, 2020. In conjunction with the new Form I-9, the USCIS has released a new version of M-274 Handbook for Employers, Guidance for Completing Form I-9.
M-274 Handbook for Employers is designed to provide information for the various employment eligibility verification obligations and contains necessary instructions for Form I-9 completion. Therefore, employers need to stay up-to-date with the most important changes to the Handbook and updated policy guidance affecting I-9 completion and retention.
Most Important Changes to the M-274 Handbook for Employers
In addition to updated guidelines, M-274 Handbook for Employers offers clarification of several Form I-9 employment eligibility verification procedures. Some of the changes include revised guidance for completing an I-9 form in specific situations, such as F-1 foreign students changing status to H-1B and foreign workers with an automatic extension of a USCIS Employment Authorization Document (EAD). Also, the new Handbook clarifies how an individual can serve as an authorized representative to complete Form I-9 on behalf of an employer, which is especially important for remote I-9 verification.
Automatic EAD Extensions
The most significant change to the M-274 Handbook for Employers includes modifications of the process for documenting the automatic extension of Employment Authorization Documents (EAD) for certain foreign national employees working in the U.S.
Under current rules and procedures, USCIS may grant an automatic EAD extension of up to 180 days to certain foreign nationals who have timely filed an application for renewal of their work authorization. In addition to this, foreign nationals with Temporary Protected Status (TPS) may receive an automatic EAD extension if their country’s TPS designation is extended.
The updated M-274 Handbook for Employers outlines different categories of foreign nationals currently eligible for auto-extended EADs and explains the process for reviewing the appropriate documentation and recording the information on the Form I-9. Compared to the previous version of the Handbook, the review process that involves updating both sections 1 and 2 to reflect the auto-extended date has been outlined in further detail. Accordingly, employers are required to carefully review both the EAD and the receipt notice showing the renewal filing to make sure an individual fully qualifies. There is also a description of how auto-extended EADs should be completed on the Form I-9.Use this detailed guide on I-9 verification to establish and implement procedures necessary for effective verification of employment eligibility while preventing potential fines and penalties.
Updates for Certain Foreign National Employees
Apart from the automatic EAD provisions, the updated M-274 Handbook for Employers encompasses several other changes that refer to employers who hire foreign national employees that have temporary work authorization.
A foreign student who has an EAD for Optional Practical Training may continue working after the EAD expires, but only through September 30 of that year, if an employer has filed an H-1B change-of-status petition in the annual lottery prior to the EAD expiration date. The period between the expiration date and September 30 is called the cap gap.
The new M-274 Handbook for Employers no longer requires students to present a Form I-20 for cap gap employment authorization. Instead, the USCIS advises employers to record the student’s expired F-1 optional practical training EAD and the Form I-797 receipt notice for an H-1B cap petition submitted on the F-1 student’s behalf. Also, employers enter the I-797 receipt number as a document number in Section 2 of Form I-9. According to the previous version of the M-274 Handbook for Employers, employers were advised to record the student’s Form I-20 Certificate of Eligibility, along with their expired EAD in Section 2.
Form I-9 Completion by Authorized Representatives
Given that many employees have transitioned to working remotely in light of the COVID-19 public health crisis, clarifications for authorized representatives are of special importance. The updated M-274 Handbook for Employers states that an employer may designate, hire, or contract with any person of their choosing to complete, update, or correct Sections 2 and 3 on the employer’s behalf. However, the employer remains liable for any violations committed by the authorized representative in connection with the form or the verification process. Also, the new Handbook clarifies that employees cannot act as an employer’s authorized representative for their own I‑9 forms.
Following Updated M-274 Handbook for Employers as a Key Condition for I-9 Compliance
All U.S. employers have to complete Form I-9 to verify the identity and employment authorization of their workforce, including both U.S. citizen and non-citizen workers. At the same time, the M-274 Handbook for Employers provides key instructions and guidance for employers in completing Form I-9. As such, it represents an inevitable element in the entire I-9 processing. Several sections of the new Handbook reflect major guidance changes and employers have to take this into consideration as soon as possible to ensure continued Form I-9 compliance and avoid monetary fines and criminal penalties.
With the complexity of I-9 compliance and constant enforcement actions by Immigration and Customs Enforcement (ICE), employers have to build, assess, and remediate compliance programs to ensure adherence with all relevant laws. It is critical now more than ever that employers strictly comply with the regulations related to I-9 completion, storage, and retention, and the best solution for this is an electronic I-9 system that allows employers to keep their I-9 management under control, remain compliant, and prevent potential issues. Furthermore, with automated I-9 software employers can be confident that every employee completing the Form I-9 is using the most updated version, aligned with the current guidelines.Simplify employment eligibility verification with an automated I-9 verification software fully integrated with E-Verify and ensure constant I-9 compliance and reduced fines and hiring costs.