New I-9 Handbook for Employers Has Extra Changes

by Baker Donelson
Contact

USCIS has unveiled a new I-9 Form and Instructions, but it has made extra changes in the 65-page "Handbook for Employers," tagged as Form M-274, that is meant to guide employers further in completing, updating, and storing I-9 forms. We discuss the major changes below. We discussed I-9 changes in a recent alert, and Handbook changes consistent with the form changes are not discussed here.

The Handbook, downloadable from www.uscis.gov/i-9, increasingly has become a truly useful repository of dependable, definitive guidance for employers in handling tricky situations that come up in the I-9 process. It is encouraging that USCIS, on behalf of the Department of Homeland Security, has continued to update it carefully.The major changes include the following:

Name Change and Rehires: The Handbook removed the topics of name changes and rehires from the table of contents but enhanced its discussion about those topics at pages 23 and 24.

Name change: The Handbook at pages 23-24 now squarely and sensibly addresses two situations:

(1) when the worker has undergone some kind of legal change of name, such as through marriage, divorce, adoption, or other court order. If the name change comes to light in the context of a rehire or reverification, then the new name should be reflected in sections 1, 2 and/or 3 of the I-9 being completed. If it comes to light otherwise, then USCIS "recommends" (but really cannot require, since there is not a mandatory verification event involved) that the employer place the new name in Section 3, ostensibly with some notation about the name change, but with no further verification of employment authorization and new new E-Verify query. Regardless of the situation, USCIS recommends that the employer ask the worker for explanation and documentation of the basis for the name change to be "reasonably assured" of the worker's actual identity. Unfortunately, USCIS does not tell employers what to do if they are not satisfied with the worker's explanation or documentation about the name change.

(2) when the worker presents an altogether new identity. The Handbook addresses the common situation of a worker presenting a new identity along with evidence of that identity's work authorization. USCIS clearly acknowledges that, even though the worker essentially is admitting to having presented a false identity in the past, the employer may choose to continue to employ the worker (or not, such as in enforcing a company policy against dishonesty). USCIS essentially extends generally the instruction it gave recently in relation to workers obtaining "Deferred Action for Child Arrivals," which we described in a prior alert: complete a new I-9 Form AND a new E-Verify query (if E-Verify is in use). Ostensibly if the worker cannot show that the new identity is also authorized to work, then the employment would need to be terminated.

Rehires: The Handbook at page 24 states that the truncated "rehire" process can be used if the rehire is within three years of when an I-9 was last completed. It clarifies that if the version of the I-9 has changed and the employer is not choosing the "update" option but instead chooses to reverify, then merely using Section 3 of the prior form is not sufficient, and a new I-9 must be completed.

Name and address variations: The Handbook at page 4 describes how to handle when the worker has two last names (hyphenated or not), two first names, or no middle or no "other names." On page 5 it prohibits use of a P.O. box for the worker in Section 1 and requires a physical address, even if a description such as "9 miles south of I-81, to the left of the water tower."

Employer representative: The Handbook at page 5 makes crystal clear for the first time a very important point that many employers have failed to understand: "The person who examines the documents must be the same person who signs Section 2. The employee must be physically present with the examiner of the documents during the examination of the employee's documents." The Handbook unfortunately does not clarify in this context a possible solution to remote hiring processes: contracting with an agent to complete section 2 for the employer in the presence of the worker.

Special categories: The Handbook beefs up its discussions about the mechanics of I-9 completion in unique situations, including minors (pages 8-9), disabled workers (pages 9-10), F and J nonimmigrants (page 6), TPS beneficiaries (pages 13-14), F-1 students using forms of "practical training" (pages 18-20), and employer associations (involving unions) (page 26). It notes that the automatic 240 day extension of authorization applicable to many nonimmigrant classifications is only 120 days for H-2A workers (page 23).

Copying documents: The Handbook at page 29 states, without clear basis, that if an employer chooses to retain copies of documents presented by workers in the verification process, whether on paper or electronically, they must be "retained with Form I-9 or stored with the employee's records."

CNMI: Discussion about workers employed in the Commonwealth of the Northern Mariana Islands is consolidated in one Q&A on page 41 with no reference in the table of contents.

SS cards: The Handbook at pages 43-44 changes prior guidance, clearly allowing employers to accept a laminated or un-signed original social security card (but not a metal or plastic reproduction of the card), and it mentions the availability of the Social Security Number Verification System (SSNVS).

The Handbook explicitly refers to "I-9 Central" (see www.uscis.gov/i-9central) as another source of I-9 guidance without opining which source prevails in the event of a conflict in guidance (which does occur from time to time).

USCIS deserves appreciation for its effort to provide clear, practical guidance in the Handbook.
(View All I-9 Procedures and Penalties Updates)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson
Contact
more
less

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.