USCIS Announces New Guidance for Completing Form I-9

Every employer is required to complete a Form I-9 for every employee.  Failing to do so, or failing to do so correctly, can result in substantial fines or even federal criminal charges.  We can review your I-9s and guide you to proper compliance.  We can also provide you with periodic updates such as this one.

COVID-19 I-9 FLEXIBILITY PROVISIONS EXTENDED 60 DAYS TO MARCH 31, 2021:

Effective February 1, 2021, DHS granted an extension of the accommodations to comply with the I-9 requirements due to COVID-19 limitations including working remotely. This temporary guidance was set to expire January 31.  Due to ongoing concerns related to COVID-19, DHS has extended this policy for an additional 60 days until March 31, 2021.  For details on the flexibility provisions see our earlier post by clicking here or the USCIS website here:  Extension of Validity of Certain Forms I-797 Due to Continued Employment Authorization Document (EAD) Delays

USCIS REPLACES THE STICKER USED TO EXTEND PERMANENT RESIDENT CARDS:

Current employees who are lawful permanent residents are not to be reverified.  As a result, the following guidance is for new employees with an expired or expiring permanent resident card.

In January 2021 USCIS updated I-9 guidance for employees with a permanent resident card that is expiring.  USCIS is replacing the sticker it currently puts on an expiring permanent resident card to extend its validity.  The sticker extends the validity of a Form I-551, which is the Permanent Resident Card (PRC), also called the Green Card, in conjunction with a revised Form I-797, Notice of Action, receipt notice of Form I-90, Application to Replace Permanent Resident Card.  The revised notice will extend the validity of a PRC for 12 months from the “Card Expires” date appearing on the front of the PRC. This change ensures that certain lawful permanent residents have documentation for completing Form I-9, Employment Eligibility Verification.

Employees may present their expired PRC together with this notice as an acceptable List A document that establishes identity and employment authorization for Form I-9 purposes. When completing a Form I-9, employers should enter the information from this document combination in Section 2, under List A:

• In the Document Number field, enter the card number provided on the expired PRC.
• In the Expiration Date field, enter the date that is 12 months from the “Card Expires” date on the expired PRC.
• In the Additional Information box, write “PRC Ext” and the I-90 receipt number from the Form I-797.

Employers who retain copies of documents should retain copies of both the PRC and Form I-797 with the employee’s Form I-9. Employers may not reverify Lawful Permanent Residents who present this document combination.

USCIS ISSUES GUIDANCE FOR DACA RECIPIENTS AND TPS HOLDERS:
The Department of Homeland Security announced in January 2021 new guidance to complete I-9s for DACA recipients and in December 2020 for employees whose Temporary Protected Status (TPS) was extended.

Completing the I-9 for DACA  Recipients:

Employees:

Employees whose employment authorization has been extended under DACA  may choose to present their unexpired Form  I-766 Employment Authorization Document (EAD) with Category code showing C33 that was issued on or after July 28, 2020, along with a Form I-797 Extension Notice issued by USCIS that shows a one-year extension of deferred action and work authorization under DACA. In Section 1 on the Form I-9, employees may enter the end validity date from the Form I-797 Extension Notice in the “Authorized to Work Until” field.

Employers:

For a new hire, if the employee presents both an unexpired Form I-766 and Form I-797 Extension Notice, the employer must enter the end validity date from the Form I-797 Extension Notice in the “Expiration Date” field on Form I-9 in Section 2. Enter “DACA Ext.” in the “Additional Information” field.
For a current employee whose employment authorization under DACA (showing Category C33 on the card) is not yet expired, an employer may reverify the employment authorization if the employee presents both the unexpired current EAD card and also the I-797 Extension Notice. Enter the end validity date from the Form I-797 Extension Notice as the “Expiration Date” on Form I-9 in Section 3. Enter “DACA Ext.” in the “Additional Information” field in Section 2.

Automatic Extension of Employment Authorization for TPS Holders:

On December 7, 2020, the Department of Homeland Security (DHS) issued a Federal Register notice extending Temporary Protected Status (TPS) and the validity of TPS-related documentation for TPS holders from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

The notice automatically extends the validity of Employment Authorization Documents (EADs); Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record (collectively, TPS-related documentation) for beneficiaries under the TPS designations for these six countries through October 4, 2021.

This notice ensures continued compliance with the orders issued by the federal district courts in the Ramos v. Nielsen, Bhattarai v. Nielsen, and Saget v. Trump lawsuits that require DHS to maintain the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, as well as the TPS and TPS-related documentation for eligible affected beneficiaries.
The USCIS Ombudsman has instructed:

• The TPS designations for El Salvador, Nicaragua, and Sudan will remain in effect, as required by the Ramos district court order, so long as the preliminary injunction remains in effect. Although a panel of the U.S. Court of Appeals for the Ninth Circuit vacated the injunction on September 14, 2020, no directive has been issued to the district court, thus the injunction remains in effect.
• The TPS designation for Haiti will remain in effect, as required by the preliminary injunction orders in both Ramos and Saget, so long as either of those preliminary injunctions remains in effect.
• The TPS designations for Honduras and Nepal will remain in effect so long as the Bhattarai order staying proceedings and approving the parties’ stipulated agreements continues to be in effect.

For more information, please see the December 9, 2020 Federal Register notice, the TPS country pages on the USCIS website, and the USCIS Update on Ramos v. Nielsen and the Update on Bhattarai v. Nielsen

For additional information or assistance to conduct an internal review of your organization’s I-9s, contact Barbara Marcouiller at [email protected] or call 425.990.4030.