Part of an employer’s job is to review I-9 documentation at the start of employment, including Green Cards. But for employers, knowing what is real vs. fake, can be an issue. My colleagues have prepared this update to one form of documentation that you should be on the lookout for. The change is happening sooner than you might think.
So did everyone enjoy Thanksgiving? I’m still recovering from my vacation so in the meantime, my colleagues, Brenda Eckert and Ashley Mendoza, return today with a post about updated I-9 forms that all employers MUST start using in January 2017. If you do any hiring, this post ought to be front and center to fulfill your obligations.
On November 14, 2016, United States Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9, Employment Eligibility Verification (“Form I-9”). This isn’t the first time it has done so but a new set of revisions means more changes for employers.
Established by the Immigration Reform and Control Act (“IRCA”), Form I-9 is used to verify the identity and employment authorization of all individuals, including U.S. citizens, hired for employment in the United States. All U.S. employers, regardless of size, must ensure proper completion and retention of Form I-9 for each new employee hired after November 6, 1986.
Beginning on January 22, 2017, employers must only use the revised Form I-9 version dated November 14, 2016. USCIS has allowed a grace period through January 21, 2017 when employers may continue to use the Form I-9 version dated March 8, 2013. Both the revised Form I-9 and the prior version may be found on USCIS’ website.
Generally, the revisions made to Form I-9 were designed to make it more user-friendly, to reduce errors and to enhance form completion using a computer. Some of the most notable changes include:
- Informational prompts are included on the form;
- Employees only need to provide “other last names used” in Section 1, Employee Information and Attestation, rather than all “other names used”;
- The employee certification in Section 1 is streamlined for certain foreign nationals;
- There is an addendum page to enter multiple preparers and translators, when applicable; and
- In Section 2, Employer or Authorized Representative Review and Verification, there is a dedicated area to enter additional information that employers have previously been required to notate in the margins of the form.
Further enhancements were made to the Form I-9 that will appear when completing it electronically on a computer. Users will see:
- Checks to certain fields to ensure information is entered correctly;
- Drop-down lists and calendars;
- Instructions on the screen that users can access to complete each field; and
- Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over.
The Form I-9 instructions have been updated to include a field-by-field guide to completion, and to address common issues that arise during completion. The revised instructions have also been separated into a distinct document from the revised Form I-9, in line with USCIS’ general practice.
While USCIS has indicated it will soon issue a revised M-274, Handbook for Employers, Guidance for Completing Form I-9, it has yet to do so. In the meantime, USCIS refers users to the revised Form I-9 instructions, found on its website for the most up-to-date information.
Notably, the list of acceptable documents that the employee may present in order to establish identity and employment authorization remains the same.
While the Form I-9 may seem relatively straightforward to employers, its completion can be complex and the rules surrounding it constantly evolve, which leads to large fines and other penalties for not completing and retaining the forms correctly.
For this reason, we recommend reaching out to an experienced immigration attorney when questions arise regarding the Form I-9.
Today, I’m delighted to bring you what I hope will be the first of several updates for employers from the immigration law perspective. One of my newest colleagues, Ashley Mendoza, along with my law partner Brenda Eckert, have been tracking some of the newest rules for employers coming out of the Department of Homeland Security. These rules will have a particular impact to employers who recruit from the STEM (science, technology, engineering, and math) areas. For employers that rely on foreign workers to help supplement their ranks, this is crucial to understand.
But a cautionary note: It’s a bit technical. There’s really no way around that. Immigration laws are just filled with technical requirements. Indeed, that’s one reason why a qualified immigration lawyer is often needed to help employers navigate these rules. Brenda and Ashley are leading the way here at my firm and I thank them for this detailed update.
Yesterday (May 10, 2016), the U.S. Department of Homeland Security (“DHS”) implemented major modifications to Optional Practical Training (“OPT”) extensions for students on F-1 visas enrolled in science, technology, engineering, and mathematics (“STEM”) degree programs.
The new regulations, published at 8 CFR Parts 214.2(f) and 274a, authorize a 24-month STEM OPT extension period, replacing the previous 17-month STEM OPT extension period.
While at first glance, the new STEM OPT extension regulations may seem a cause for celebration, there are a number of added requirements and oversight provisions and, for some U.S. employers, the benefits may not outweigh the burdens.
What is OPT?
OPT is a form of temporary employment available to students holding F-1 visas that directly relates to a student’s program of study. The employment is often paid, and may take place during and/or after completion of the degree program.
The overarching idea is that OPT will afford eligible international students and new graduates the opportunity to gain hands-on practical experience to supplement what they learned during their degree program. Students may be authorized for a total of 12 months of full-time OPT at each educational level (e.g., undergraduate, graduate and post-graduate).
The application process is relatively straight forward. The student must first request approval from his or her designated school official (“DSO”), who will then make a recommendation to the electronic Student and Exchange Visitor and Information System (“SEVIS”) by endorsing a Form I-20.
Thereafter, the student must file the Form I-765, Application for Employment Authorization, supporting documentation, and a filing fee of $380.00 with the U.S. Citizenship and Immigration Services (“USCIS”).
The extension & the changes to it
Since 2008, eligible students who graduate with a qualified STEM degree and are presently engaged in a period of approved post-completion OPT may have the option to extend their OPT for a period of 17 months.
This is the existing STEM OPT extension, and this is what the new regulations modify. These changes will affect all parties involved in the STEM OPT extension process. This includes the students and the U.S. employers with whom the students will train during the course of the approved period of STEM OPT.
Not to be forgotten, however, are the DSO’s who perform pivotal work with students behind-the-scenes to recommend them for OPT and extensions and maintain student records in SEVIS.
So, what’s new?
The better question, really, is what isn’t new.
The new regulations provide a comprehensive overhaul to the STEM OPT program.
It’s FINALLY a nice spring day outside in Connecticut (see the picture of the Connecticut River taken this morning) so no need to spend a minute more than necessary to catch up on some other employment law-related items you might have missed during the week:
- A topic near and dear to my heart, background checks, had several good posts written about them. The first, from the BeenVerified.com blog, recaps online identity issues and emphasizes the importance, yet again, of doing background checks before hiring. And the EmployeeScreenIQ Blog reports on various schools and employers who fail to follow the law and don’t accept electronic signatures for conducting such checks.
- Several blogs, including the Ohio Employer’s Law Blog and the Workplace Prof blog, report on the Department of Labor’s new commitment to wage & hour enforcement cases. Because of this, Jon Hyman suggests that employers need to be extra vigilant in uncovering wage and hour violations in their own workforce.
- Although I previously discussed the new whistleblower provisions in the stimulus package, the Laconic Law Blog does a good job discussing this further. As the post suggests, "Any organization receiving stimulus funds should be aware of these provisions because, among other things, they contain posting requirements."
- For employers receiving funds from the government under TARP (Troubled Asset Relief Program), the United States Citizenship and Immigration Services explained new requirements that employers must meet before hiring foreign nationals to work with H-1B visa. The Washington Employment Law Update has the details.
- The Florida Employment Law Blog has a timely post about the pitfalls of reducing salary and pay of exempt workers as a way to cut costs in these tough economic times. The post suggests ways for employers to avoid running afoul of such rules.
In a last minute notice and delay, United States Citizenship and Immigration Services announced that it is postponing, until April 3, 2009, the implementation of a new I-9 form and a revised list of acceptable documents to determine employment eligibility. (For background, you can find my most recent post on the form here.)
The new forms were to go into effect today, February 2, 2009. Instead, it has instructed employers to continue to abide by the old rule and use the old form.
USCIS released a press release late last week in which it indicated that it was reopening the public comment period for 30 days. You can find the release here.
File this under "mundane" but necessary. Two sets of new forms (and a poster) have been released by the U.S. Government for use by HR professionals and companies in two very different circumstances.
First, the Citizenship and Immigration Services (CIS) has issued a new rule with that revises Form I-9 and the list of documents that are acceptable to prove identity and employment authorization. (This form is needed when employers hire new employees.) Employers will be given a 45-day grace period to begin using the new form. Failing to do so may result in fines.(H/T Washington Employment Law Update)
The most noticeable change to the rules is that employers will no longer be able to accept expired documents as proof of citizenship. Some of the other changes are more technical, than substantive. You can view all of the information regarding the form (as well as the form when it becomes available) at the CIS website here.
New rules regarding FMLA leave are going into effect next month. (H/T Ohio Employer’s Law Blog.) In advance of those regulations, the DOL has issued new forms that can be used by employers. (Use of the forms is not mandatory, but strongly recommended as a way to comply with the rule is a ready fashion.) As noted by the Ohio blog:
The Department provides optional forms for use by employers and employees during the FMLA process. The Department has revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F). The Department has also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381). In addition, the Department has added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).
The new FMLA rule is effective January 16, 2009 so now’s the time to start revising your policies and forms. (I’ll be giving a presentation next month on the subject as well; details to follow soon).
When a new employee starts, there’s normally enough paperwork to fill a room. One of those forms is the I-9 form issued by the United States Citizenship and Immigration Services (USCIS), formerly INS. What does the I-9 form check? It checks the new hire’s employment eligibility — in other words, is the person legally allowed to work in the United States.
Late last week, USCIS updated the form, which applies to both Connecticut and national employers, for the first time in a while. In addition, it updated the companion handbook for employers, which includes instructions on how to complete the form. You can download the form here. The documents are also available on the USCIS’s website and additional information is available for employers here.
When do employers need to use this new form?
USCIS urges employers to begin using these new forms immediately; however, USCIS has also indicated that employers can use the old form I-9 until December 7, 2007. Certainly, it appears that employers should considering using the new form as soon as possible, and no later than December 7, 2007.
What changes does the form make? There are several, but here are a few noteworthy ones as noted by the Pennsylvania Employment Law Blog.
- Five documents have been removed from List A of the List of Acceptable Documents:
- Certificate of U.S. Citizenship (Form N-560 or N-561)
- Certificate of Naturalization (Form N-550 or N-570)
- Alien Registration Receipt Card (I-151)
- Unexpired Reentry Permit (Form I-327)
- Unexpired Refugee Travel Document (Form I-571)
- One document was added to List A of the List of Acceptable Documents:
- Unexpired Employment Authorization Document (I-766)
- Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify.
- Employers may now sign and retain Forms I-9 electronically.
The changes to this form may not be the most exciting development in employment law, but considering that every new hire must fill one out, it is important for employers to understand them. Even more important, employer should start using this new form and make sure that the form is filled out correctly.
(H.T. Ohio Employer’s Law Blog)
UPDATE: The new forms go into effect December 26, 2007.