HR Hero Line

New I-9 does not change sticky compliance issues

by Lori Chesser and Elizabeth Van Arkel

On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) released an updated I-9 employment eligibility verification form to replace all prior versions. The new I-9 must be used by all employers starting September 18, 2017. The new version contains relatively minor technical corrections. 

Automatic EADs
While it is important to use the right form and familiarize yourself with the updated instructions, some of the stickiest I-9 documentation issues aren’t obvious. The automatic employment authorization document (EAD) extension rule is one of them.

In January, USCIS listed several categories of employment authorizations that are now automatically extended for 180 days after the expiration date on the EAD so long as certain conditions are met. Additionally, employees with temporary protected status are provided automatic EAD extensions in certain circumstances. We address only the 180-day extension in this article. For information on temporary protected status automatic extension, go to http://bit.ly/2tZHGeh.

The EAD is a List A document and shows both identity and employment authorization. However, it must be reverified upon expiration. Failing to do so will be considered a “knowing hire” violation, which may lead to more serious penalties than “paperwork” violations.”

180-day automatic extension
For EADs listed in USCIS’s rule, work authorization is considered to be automatically extended for 180 days or until denial of the extension (whichever occurs first) upon the timely filing of an extension application. A list of categories that qualify for the 180-day automatic extension can be found at http://bit.ly/2tuTGa5.

To qualify for the automatic extension of work authorization, the Category Card number must appear on the list. The extension application must be received by USCIS before the current EAD expires. Also, the Category Card number on the extension application must be the same as on the expired (or expiring) EAD.

When completing or reverifying an I-9 for an employee who qualifies for the 180-day automatic extension, employers should determine the expiration date by adding 180 days to the date the EAD expires. In other words, the expiration date of the current EAD + 180 days = the date work authorization expires.

The original documentation the employer must review is the receipt for the EAD extension (Form I-797C) and the expired or expiring EAD (the I-9 may be updated before the original EAD expires). If the employer reviewed the original EAD previously, the document does not need to be presented again. The receipt date for the I-797C must be before the expiration of the current EAD, and the category on the receipt must be the same as the one on the EAD. If verifying a new hire, the employer should fill in the I-797C number as the document number.

It is a good idea to explain that the receipt is for an EAD automatic extension in the box provided in Section 2. If you are reverifying a current employee’s document, you may cross out the current expiration date, write the 180-day extension date, note “EAD EXT” in Section 2, initial the form, and provide the date of the change. Although the instructions say that employees may update Section 1, we do not recommend employees updating the section as a general rule.

Bottom line
Keeping up with I-9 compliance can be challenging, and we expect it to become even more important as immigration enforcement attention shifts during the Trump administration. We recommend using the current M-274, Handbook for Employers Guidance for Completing Form I-9, and consulting with immigration counsel when questions arise.

Lori Chesser is an attorney with Davis Brown Law Firm, practicing in the firm’s  Des Moines, Iowa, office. She may be contacted at lorichesser@davisbrownlaw.com.

Elizabeth Van Arkel is an attorney with Davis Brown Law Firm, practicing in the firm’s Des Moines, Iowa, office. She may be contacted at elizabethvanarkel@davisbrownlaw.com.

Need to learn more? Join us at the 22nd Advanced Employment Issues Symposium where ECN attorneys where two sessions are designed to cover your i-9 issues. The 75-minute session  Form I-9 and National Origin/Citizenship-Based Discrimination: How to Minimize Legal Risks in Recruiting Employment Verification and Re-verficiation, and Avoid ICE Penalties will focus on avoiding violations under Title VII and recommend strategies for self-auditing your practices for managing Form I-9s to avoid hefty ICE penalties and potential legal claims. The attorney will review the new Smart Form I-9 as well as how to correct I-9 errors, get the documentation you need from employees, and handle a situation where you determine that a worker doesn’t have the documentation to prove he or she is authorized to work in the United States. The 3-hour preconference workshop Avoiding Hiring Landmines: Navigating Pre-Employment Inquiries, Background Checks, Drug Testing, I-9s, and Other Legal Tripwires will cover employment verification procedures for meeting I-9 requirements as well as other overlapping hiring policies and practices.  To learn more, click here.