In anticipation of the 10/21/19 version of the  Form I-9 becoming mandatory for use, on May 1, the U.S. Citizenship and Immigration Service (USCIS) released the new M-274, Handbook for Employers. The M-274 is the handy companion to the Form I-9, and its importance should not be understated. The Handbook contains critical guidance on I-9 compliance, designed to supplement an employers’ understanding of its employment eligibility verification responsibilities and obligations. The M-274 contains 96 pages and should be used in conjunction with the Form I-9 instructions.

It’s a lot to digest, and the new version includes the most significant changes and clarifications we have seen in an extremely long time. Don’t despair, the I-9 geeks at Seyfarth are still mulling over the Handbook. In fact, we are busy mapping out the changes, as well as highlighting items that require further clarification, so you won’t have to. A Webinar invite for next week, to walk through updates and discuss I-9 immigration compliance during COVID-19 will be released shortly.  

The Summary of Changes published by the USCIS highlights major call outs and clarifications for employers but will be difficult to understand unless you are immersed in the completion of Form I-9s on a daily basis. It is important to keep in mind that this summary is not meant to replace the Handbook itself. 

As you will see nothing is perfect. The M-274 instructs employers completing I-9s for F-1 students changing status to H-1b as follows:

In Section 1, a new employee should:

• • Select “An alien authorized to work until;” and
  • Enter Sept. 30 and the year the H-1B change of status petition was filed as the expiration date.

In Section 2, you should:

• • Enter EAD as the document title;
  • Enter the Form I-797C receipt number in the Document Number field;
  • Enter Sept. 30 and the year you filed the petition in the Expiration Date field; and
  • Enter CAP-GAP in the Additional Information field.

To update Section 2 for a current employee eligible for a cap-gap extension once you receive the  Form I-797C, enter CAP-GAP and Sept. 30 and the year you filed the petition in the Additional Information field. For example, CAP-GAP 09/30/yyyy.

This new  “Cap-Gap” requirement to record the I-797C receipt is often impossible, especially considering the recent COVID-19 receipt delays.

We also agree that the amount of information that the USCIS is requesting reside in the Additional Information Box will necessitate a larger box. The M-274 directs employers whose existing employees have received automatic extensions of work authorization to:

• • update the Additional Information field in Section 2 when the employee’s EAD has been automatically extended. Employers should enter EAD EXT and the 180-day auto-extended date in the Additional Information field in Section 2.
  • For example, EAD EXT mm/dd/yyyy.

Combined with all of the COVID-19 related guidance to place information in the Additional Information Box, that box will likely become very crowded very quickly for some employee’s I-9s.