On April 27, 2020 United States Citizenship and Immigration Services (USCIS) released a new version of the Handbook for Employers, Guidance for Completing Form I-9 (M-274).  The M-274 is an essential compendium of I-9 compliance information and instruction, and is designed to supplement employ­ers’ understanding and knowledge of the various employment eligibility verification obligations.

The new version of the M-274 was released in connection with its release of the new version of the Form I-9, Employment Eligibility Verification (rev. 10/21/19 on bottom left), which became mandatory on May 1, 2020.  See our post on this topic for additional information.  Here we will highlight some of the most import­ant changes to the M-274.

Automatic EAD Extensions

The most significant change to the M-274 revolves around the process for documenting the automatic extension of Employment Authorization Documents (EAD) for certain foreign national employees working in the U.S.  An automatic EAD extension is a fairly new concept, which was brought about by a Department of Homeland Security (DHS) rule that provides additional benefits and flexibility to high-skilled nonimmigrant workers in the U.S.  Under this rule, EADs can be automatically extended for up to 180 days for certain individuals who timely filed to renew an EAD that is in the same category as the previous EAD.

The updated M-274 describes the various categories of foreign nationals currently eligible for these auto-extended EADs and sets out the process for reviewing the appropriate documentation and recording the information on the Form I-9, which involves updating both sections 1 and 2 to reflect the auto-extended date.  The review process has been outlined in further detail than previously, requiring employers to more carefully review the underlying documentation (both the EAD and the receipt notice showing the renewal filing) to make sure the individual fully qualifies.  There is also a description of how auto-extended EADs should be completed on the Form I-9, including the auto-extended EAD rule on reverification, refugees and asylees, nonimmigrants requesting extensions of stay, accepting an expired document and when employment authorization expires.

Additional I-9 Rules for Certain Foreign National Employees

In addition to the automatic EAD provisions, the updated M-274 features several other changes that will impact employers when hiring foreign national employees that have temporary work authorization.

1. E-Verify STEM: The USCIS now explicitly notes (in keeping with its recent guidance) that employers must use E-Verify at the specific hiring site where it employs an F-1 STEM student who received a 24-month extension of their optional practical training.
2. F-1 students in CPT:An acceptable Form I-20 for F-1 students in curricular practical training (CPT) must have all employment authorization fields completed. These fields include employment status, employment type, start and end date of employment, and the employer’s name and location.
3. H-1B extensions:In the context of documenting an H-1B extension and the 240-day automatic work extension, the updated M-274 also indicates the following that, “your employee may update Section 1 by crossing out the expiration date of their employment authorization noted in the attestation. Write in the new date that the automatic extension of employment authorization ends.  Initial and date this update in the margin of Section 1.”
4. Extensions of stay:The updated M-274 also includes new instructions relating to documentation that must be maintained when filing an extension of stay for a qualifying employee. Specifically, it indicates: “After you receive the I-797C, Notice of Action, which bears the amount of the filing fee submitted and acknowledges USCIS’ receipt of the new Form I-129 petition, it is not necessary to maintain a copy of the Form I-129 application, proof of payment, and mailing receipt for Form I-9 purposes.  You should retain the I-797C, Notice of Action to show that you filed for an extension of stay on the employee’s behalf.”

Form I-9 Retention

The updated M-274 also includes a new provision relating to the retention of I-9s for employees who never started work for pay.  Specifically, the USCIS indicates:

“Employers must retain a Form I-9 for each person hired. This requirement applies from the date of hire, even if the employment ends shortly after hired, the hired employee never completes work for pay, or never finishes the Form I-9.” (emphasis added)

Based on this new information in the M-274, USCIS appears to be stating that employers need to retain I-9 forms for all employees, re­gardless of whether or not they ever start work or receive a paycheck.  This new instruction, however, is at odds with the regulations at 8 CFR 274a.2, which define an employer’s I-9 obligation limited to indi­viduals who provide services or labor for wages or remuneration.  An individual who never starts work for pay would arguably not fall into this category (and thus no I-9 obligation exists).  Moreover, officials from Immigration and Cus­toms Enforcement (ICE) have previously noted that an employer is not required to retain a Form I-9 for an individual who never starts work for pay, and thus would not be required to produce the I-9 in the event of an inspection.

Given the apparent contradiction between this new guidance and the regulations, employers are advised to work with their legal counsel before adopting any strategies regarding the retention (or destruction) of I-9s for individu­als who never started to work for pay.

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