I-9 Verification Updates from AILA-DHS Liaison Meeting

On November 6, 2014, the American Immigration Lawyers Association (AILA) Verification and Documentation Liaison Committee met with USCIS Verification Division and ICE Homeland Security Investigations (HSI) in Washington, D.C.  USCIS and HSI responded to a number of questions from AILA relating to I-9 verification. Some of the highlights include:

  • F-1 Cap Gap Documentation for I-9 Verification

A cap-gap endorsed Form I-20, along with the expired Optional Practical Training (OPT) Employment Authorization Document (EAD) is listed as a suggested acceptable document in the M-274, Handbook for Employers.  However, often times schools are not willing or able to issue an endorsed I-20 for cap-gap students. USCIS clarified that the document combination in the M-274 is suggested, but not required. An alternative suggested combination that would be acceptable is the expired OPT EAD with a Form I-797 H-1B receipt notice.

  • EAD Approval May Not Serve as List C Document

USCIS confirmed that an I-797 notice of approval of the I-765 application for an EAD is not an acceptable document for Form I-9, because it clearly states that it is not evidence of employment authorization. However, in instances where an EAD was lost in the mail, the employee may present a receipt for the application for a lost EAD and continue to work for 90-days. By then, the employee must present the actual EAD for which the receipt was issued.

  • DHS Letter as Proof of Employment Authorization

In the event of delays and glitches in card production even after an employee is approved for an OPT EAD, the employee is sometimes able to secure a letter from the local USCIS field office. USCIS takes the position that a letter from a USCIS field office issued to an individual to use as proof of employment may qualify as a List C#8 document, but only if it states that the individual may use the letter as proof of employment authorization for a specific length of time.

USCIS takes the position that, despite the November 2013 Board of Immigration Appeals (BIA) decision in the Matter of Do Kyung Lee (finding that an E-2 spouse does not require an EAD to be employment-authorized), an I-94 is not an acceptable document for purposes of Form I-9. Therefore, the employee needs to request work authorization and receive an EAD before starting to work.

  • E-Verify and Reverification

USCIS confirms that currently employers are not able to reverify an existing employee’s work authorization in E-Verify, and in fact, must not do so. USCIS is currently working on developing a reverification process for E-Verify. USCIS intends to publish a Federal Register Notice describing the proposed process and inviting public comment.

  • E-Verify and Rehires

USCIS clarified that when an employee is rehired, but did not previously have his or her employment authorization verified through E-Verify or if verified, did not receive an employment authorized result, the employer must create an E-Verify case for the rehired employee. E-Verify does not accept any expired documents, so USCIS provided guidance to remind employers to ensure that the rehired employee’s identity document is unexpired before creating an E-Verify case.

  • Fixing Typos in E-Verify

There had been conflicting guidance on how to handle typos entered into E-Verify. USCIS clarified that, if incorrect information is entered while creating a case in E-Verify, the employer will need to create a new case with the correct information for the employee. If the case is not yet closed, the employer should close the case by selecting the statement, “The case is invalid because the data entered is incorrect.”  If the case is already closed, the employer should make a note either on the E-Verify case details page or on the employee’s Form I-9 explaining that a second case was created because the first case contained incorrect information.

  • Monitoring & Compliance (M&C) Desk Review & Site Visit Trends

USCIS confirmed that M&C may conduct a site visit prior to a desk review.  Further, following a site visit, M&C’s recommendation letter to the employer may include issues neither disclosed nor discussed during the site visit meetings with the employer. This is due to the fact that, in some cases, the issues are discovered after the site visit.

It is imperative for U.S. employers to be aware of the latest trends and requirements relating to I-9 compliance. 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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