I-9 Compliance Wisdom from Meeting Between AILA, USCIS and ICE

On May 3, 2016, the American Immigration Lawyers Association (AILA) Verification and Document Liaison Committee met with USCIS’ Verification Division and U.S. Immigration and Customs Enforcement (ICE), Homeland Security Investigations to respond to questions, provide updates and address follow-up items. The Q & A between AILA, ICE and USCIS, resulted in valuable insight, including clarification on the following issues:

I-9 Form for Employees Trained in the U.S. but Paid by Overseas Employer

Generally, if a company is paying for training required for the job, a Form I-9 must be completed for the employee even if the training lasts only one day. The government clarified that if the U.S. company has a separate business enterprise abroad for which the individual is (or will be) customarily employed and if the individual being trained receives remuneration from a foreign source only for performing an eligible B-1 visa activity, pursuant to the relevant Foreign Affairs Manual section, an I-9 form may not be required.

I-9 Forms for Students in CPT or OPT Status

The government clarified that an acceptable Form I-20 for either Curricular Practical Training (CPT) or Optional Practical Training STEM Extension (STEM OPT) should have all fields completed relating to Employment Authorization, including the employment status, type, start and end date, and the employer’s name and location.

A Form I-20 for a 12-month OPT is not required to have all Employment Authorization Fields completed but should indicate OPT recommendation or OPT approval. In fact, an OPT EAD alone is an acceptable List A document, without the accompanying I-20.

Individuals who have applied for STEM OPT extensions may work for their employers during the pendency of the EAD application for up to 180 days after the expiration of the 12-month OPT EAD. The government confirmed that an expired form I-766 and a Form I-20 endorsed by the designated school official recommending the STEM extension would constitute an acceptable List A combination of documents for Form I-9.  If the STEM OPT extension has already been approved, then the new, unexpired I-766 alone will be an acceptable List A document. There is no requirement for the From I-765 receipt notice to be presented.

Forms I-9 for Remote Employees Completed by Authorized Representatives

An employer may utilize an authorized representative to conduct the verification process for remote employees who cannot physically report to the employer’s main office for verification. The authorized representative would act as the employer’s agent for purposes of examining the employee’s original acceptable documents and completing Section 2 of the Form I-9.

In the Q & A, the government discussed the proper procedure for handling this process by the authorized representative. The representative should write “Authorized Representative” in the Title Field.  In the “Employer’s Business or Organization Name” and Employer’s Business or Organization Address” fields, the authorized representative should enter the employer’s name and address for the specific employer location where the employee will be working.

Catch-All Acceptable Documents

The government reminded stakeholders that number eight under the C column on the I-9 List of Acceptable Documents allows “catch-all” documentation but does not specifically list acceptable documents. Some examples are provided on the USCIS I-9 Central website but that is not a complete list. Therefore, it is important for employers to double-check the adequacy of any documents presented by an employee under List C before rejecting them, even if they are not specifically listed as Acceptable Documents in the I-9 instructions. Rejecting acceptable documents may result in the potential hire complaining to the U.S. Department of Justice.

Laminated Social Security Cards

The government clarified that an employer may not reject an otherwise acceptable but laminated Social Security Card, even if it states “not valid if laminated” or “do not laminate.”

Abstract Birth Certificates as Acceptable List C Documents

The federal government does not mandate what documents are considered birth certificates. Birth records are filed permanently in a state vital statistics office, or in a city, county or other local office. In the Q & A, the government suggested that an abstract of a full birth record does not appear to be the equivalent of a birth certificate issued by a state as provided by DHS regulations. However, the government also suggested that questions regarding birth abstracts and certificates should be directed to the specific document-issuing authority.

I-9 Forms for Employees with Portability Petitions

Unique rules apply to extensions for most employment-based nonimmigrant visa categories and to change of employer petitions for certain workers in H-1B status. It is very important for employers to be aware of the unique procedures and documentary requirements for verifying or reverifying the employment authorization of such workers. The government’s official guidance suggests that employers should retain, among other required documentation, the following items with the Form I-9 as evidence of the filing of an extension or H-1B change of employer petition: (1) A copy of the new Form I-129; (2) Proof of payment for filing a new Form I-129; and (3) Evidence that the employer mailed the new Form I-129 to USCIS. In the Q & A, the government suggested that the employer may retain a copy of the receipt notice for the change of employer petition, instead of the above combination of documents. Note that there is a unique way of noting a change of employer H-1B petition in Section 2 of the Form I-9, described in USCIS’ M-274 Handbook for Employers.

E-Verify for Cases Involving Receipts

The government’s guidance relating to E-Verify for cases in which the employee presents an acceptable receipt in lieu of stolen/lost/damaged documentation states that the E-Verify query should be held until an acceptable document, other than a receipt, is presented. The government explained that employers must create a case in E-Verify by the third business day after hire, if the employee presents one of the following documents which are also considered “receipts”: (1) The arrival portion of Form I-94/I-94A with a temporary I-551 stamp and a photograph of the individual; or (2) The Departure portion of Form I-94/I-94A with a refugee admission stamp. Further, in the Q & A, the government clarified that in the context of a 240-day extension for certain non-immigrant workers, an automatic STEM extension, portability, and similar situations, the employer must set aside the employee’s Form I-9 and create an E-Verify once the actual document, either approved petition or EAD, is received.

For more information about the I-9 compliance and E-Verify processes, please contact one of our immigration attorneys. Our firm provides a variety of services related to I-9 compliance, including voluntary audits and training, as well as representation in connection with enforcement audits by ICE. We have represented and advised employers in multiple industries with relation to I-9 compliance, including hospitality, restaurant, landscaping, production, retail, staffing, manufacturing, higher education, service provider, and financial industries.

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