USCIS Releases Revised Handbook for Employers (M-274)

The U.S. Citizenship and Immigration Services (USCIS) recently revised and updated The Handbook for Employers (also known as M-274), its guide for the Form I-9 process.  The Form I-9 is the affirmative employer verification of authorization to work.  It contains sections to be completed and signed by the employer and other sections to be completed and signed by the employee to verify the employee’s identity and work authorization.  Employers must ensure a Form I-9, Employment Eligibility Verification, is timely completed for all employees hired after November 6, 1986.  Both the Form I-9 and the latest version of The Handbook are available on the USCIS website, at www.uscis.gov/files/form/i-9.pdf and www.uscis.gov/files/form/m-274.pdf, respectively. 

This latest revision of the Handbook includes new visual aids and expanded explanations to further clarify the employment verification process.  Updated features include:

•         Examples of new USCIS documents, such as the redesigned permanent resident card;
•         Clarification on the timely completion of Forms I-9 for employees expected to work three days or more: 
•    The employee must complete Section 1 of Form I-9 after acceptance of the job offer and no later than his/her first day of work for pay. 
•    The employer must review the Form I-9 and fully complete Section 2 within three business days after the first day of work for pay.  Thus, if a new hire begins on Monday, the I-9 would need to be completed by Thursday.
•          Identification of Temporary Protected Status (TPS) employment authorization documents (EADs) and applicable automatic extensions, as well as instruction on recording these extensions on the Form I-9;
•          Additional guidance regarding permanent residents, refugees and asylees;
•          Explanation regarding completion of Forms I-9 for J-1 Exchange Visitors and F-1 Students, including review of Forms I-20 for appropriate DSO endorsement for employment in certain circumstances;
•          Guidance on documenting extensions for workers with temporary employment authorization, including F-1 STEM OPT extension, H-1B “cap gap” and the 240-day period available to certain individuals in E, H, L, O, P, Q, R and TN classifications;
•          Instruction on completing Forms I-9 for H-1B and H-2A hires who are “porting”;
•          Guidance on handling name changes and interruptions in employment;
•          Information for employers in the Commonwealth of the Northern Mariana Islands (CNMI); and
•          Additional “real-world” examples and revised “questions and answers” regarding the I-9 process.

The revised Handbook also includes an expanded section describing standards and procedures for electronic Forms I-9 preparation, signature, retention, and documentation.  Although the government allows use of electronic I-9 systems, the employer is ultimately responsible for any violations resulting from system deficiencies.  Thus, it is imperative that employers carefully evaluate compliance with the applicable regulations and functionality before implementing any electronic system. 

Example:  Immigration & Customs Enforcement (ICE) audited clothing retailer Abercrombie & Fitch, a company that developed its own electronic I-9 system.  Although ICE did not find evidence that the company knowingly hired unauthorized workers, it did identify “numerous technology-related deficiencies” in the company’s I-9 system, resulting in an administrative fine of more than $1 million.  (September 28, 2010 ICE Press Release)

Today's employer must not only comply with the prohibition against unauthorized employment found in the Immigration Reform and Control Act of 1986 (IRCA), but also with its nondiscrimination provisions as well.  Although The Handbook offers clarification and update on many important aspects of the I-9 process, employers’ best practices require regular evaluation of compliance systems and I-9 training.  If you would like assistance with I-9 verification practices, staff training or transition to an electronic I-9 system, please contact us.