Latest Version of Form I-9 Now Required and New Updates to the Handbook for Employers M-274

As of May 1, 2020, U.S. employers must use the latest version of Form I-9 (edition date October 21, 2019) when verifying employment eligibility of employees. The Form I-9 must be properly completed by all U.S. employers for every individual hired for employment in the United States after November 6, 1986. To correspond with the new form version of the Form I-9, USCIS also released an updated version of the “Handbook for Employers M-274” on April 27, 2020. The new M-274 can be downloaded on USCIS’s I-9 Central website. A complete list of changes to the M-274 can be found on the last section of the updated M-274. A summary of the significant changes to the M-274 can be found below:

• Section 2.0 was revised to clarify who can serve as an authorized representative. Specifically, the updated M-274 states: You may designate, hire, or contract with any person you choose to complete, update or make corrections to Section 2 or 3 on your behalf. This person is known as your authorized representative. The authorized representative must perform all the employer duties described in this handbook, and complete, sign and date Section 2 or 3 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws, committed by your authorized representative.

Employees cannot act as authorized representatives for their own Form I-9. Therefore, employees cannot complete, update or make corrections to Section 2 or 3 for themselves or attest to the authenticity of the documentation they present.

• Sections 4.4 and 6.4.2 were updated to clarify and revise guidance relating to how employers should enter expiration dates based on automatic extensions of documents. Previously, USCIS advised employers to cross out and initial the employment expiration date in the “Alien authorized to work until” field in Section 1, when an employee’s employment authorization was automatically extended due to a timely filed renewal. Now, USCIS advises employers to update the “Additional Information” field in Section 2 of the Form I-9 by entering “EAD EXT” and automatically extended expiration date in the Additional Information field in Section 2, in mm/dd/yyyy format. The new M-274 Handbook also provides guidance on how to complete the Form I-9 when an Employment Authorization Document (EAD) is automatically extended by Federal Register notices. If you are unsure whether your employee’s EAD is eligible for automatic extension, please contact your immigration counsel at Ryan Swanson & Cleveland.
• Section 6.4.2 was updated to revise cap-gap extension document requirements. “Cap-gap” refers to the period between the time a student’s F-1 status would ordinarily end and their H-1B status begins. If an employer timely files an H-1B petition for a student employee prior to his or her OPT EAD or STEM OPT EAD expiration date, the student may continue working beyond the expiration date on their OPT EAD, during their “cap-gap,” while waiting for the start date of an approved or pending H-1B petition. Previously, USCIS required employers to review the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, to document a student’s extension of employment authorization pursuant to cap-gap. Now, USCIS requires employers to enter the receipt number from the timely filed Form I-797C, Notice of Action as the employee’s Document Number in Section 2 of the Form I-9, and enter “Cap-Gap” in the Additional Information field, followed by the expiration of the cap-gap period. For example, “Cap-Gap 9/30/yyyy”.

Lastly, USCIS updated its I-9 Central email address to [email protected] on April 24, 2020. If you have sent an email to USCIS on or after April 24, 2020, using the previous email address for I-9 inquiries and have not received a response within 48 hours, USCIS urges employers to resend the unanswered message to the updated email address.

For information on DHS exceptions to I-9 compliance, please see our recent article.

If you have any questions about the new Form I-9, or how to properly document your employees’ employment authorization on the Form I-9, please do not hesitate to contact an immigration attorney at Ryan Swanson & Cleveland.

Cody Nunn can be reached at [email protected].
Amy Royalty can be reached at [email protected]
Marsha Mavunkel can be reached at [email protected].
Janet Cheetham can be reached at [email protected].
Joel Paget can be reached at [email protected].
Jen Chen can be reached at [email protected].