The US Department of Homeland Security published new instructions on Form I-9 completion for employees with expired identity documentation on May 1, 2020, as well as a revised employer Form I-9 handbook. As of May 1, all employers must use the October 21, 2019 edition of Form I-9 to verify employment eligibility.
The US Department of Homeland Security (DHS) implemented a number of temporary policies related to I-9 compliance, which we summarized in an earlier alert, to minimize the burden on both employers and employees due to the coronavirus (COVID-19) pandemic. On May 1, 2020, DHS issued additional guidance providing an automatic extension for some expired identity and work authorization documents.
List B Documents: Driver’s License or State ID
If an employee’s state ID or driver’s license expired on or after March 1, 2020, and the state extends the document expiration date due to COVID-19, then the facially expired document remains acceptable as a List B document for Form I-9 purposes.
Identity documents found in List B with an expiration date on or after March 1, 2020 are acceptable and should be treated as a valid receipt for an acceptable document for Form I-9 purposes.
Complying with Form I-9 Rules When New Hires Are Starting Work Remotely
On March 20, DHS and US Immigration and Customs Enforcement (ICE) announced flexibility in complying with physical presence requirements requirements related to Form I-9, Employment Eligibility Verification. Under the temporary guidance, the following apply:
The US Citizenship and Immigration Services (USCIS) recently published an updated M-274, Handbook for Employers: Guidance for Completing Form I-9, which provides employers with key guidance for completing the form. Here are some of the most relevant updates and clarifications.
Automatic Extensions of EAD Validity
Sections 4.4 and 6.4.2 confirm that employers should enter expiration date changes based on automatic extensions of employment authorization documents (EADs) in the additional information field in Section 2. Previously, employers were instructed to have the employee cross out and initial information in the “Alien authorized to work until” expiration date field in Section 1.
Section 4.4 provides instructions related to the completion of Form I-9 with EADs automatically extended by Federal Register notices.
Section 6.4.2 confirms that employers should enter the receipt number from Form I-797C, Notice of Action, as the employee’s document number in Section 2. Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, is no longer required.
F-1 and J-1 Work Authorization Expiration Date
Section 6.4 updates the directions for Form I-9 completion for J-1 exchange visitors and F-1 nonimmigrants including instructions for curricular practical training (CPT), optional practical training (OPT), STEM-OPT, and cap-gap protection for F-1 students.
Form I-9 Retention
Sections 9.0–9.2 confirm but do not change how long employers should retain Forms I-9, the form in which employers can retain Forms I-9, and how quickly employers must produce Forms I-9, if requested.
For additional information related to completion of Form I-9, please review M-274, Handbook for Employers: Guidance for Completing Form I-9.
Morgan Lewis provides comprehensive immigration compliance counseling to employers, including on Form I-9 and E-Verify, policy creation and revision, and training, and represents employers before US government agencies in connection with immigration-related investigations and charges.
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Laura C. Garvin