As many of you by now, on September 18, 2017, employers must start using the new Form I-9 that USCIS released on July 17. You can identify the new Form I-9 by the designation “Form I-9 07/17/17 N” in the lower left corner of the page. You can find the current version of the Form I-9, including a fillable version of the form with drop down boxes, at the USCIS website.
The problem with the Form I-9 and its instructions, which are now fifteen pages long, is that the form and instructions cannot keep pace with changes to the rules and regulations governing who is authorized to work in the United States. A perfect example of this problem is the 180 day automatic extension of work authorization for certain employees who file to extend their employment authorization document (EAD). The regulation creating this extension went into effect on January 17, 2017. Yet the new Form I-9 and its instructions provide little in the way of guidance. Employees who file for a new EAD before the current EAD expires will be eligible for an extension of work authorization for up to 180 days if:
- the eligibility category on the face of their EAD is the same as the eligibility code on their I-797C Notice of Action fee receipt for filing for a new EAD (employees in Temporary Status can have either code A12 or C19) and
- the USCIS has designated the eligibility category as qualifying for the 180 day automatic extension – currently codes A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C24, C31, and A12 or C19.
There are several other automatic extensions of work authorization under the immigration regulations, such as for individuals re-registering for Temporary Protected Status, F-1 students who have applied for an extension of their Optional Practical Training under the 24 month STEM extension program, current employees of the employer who are the beneficiary of a timely filed extension of certain nonimmigrant statuses, such as the H-1B, L-1, E-1, E-2, E-3, O-1, P-1, or TN, and certain F-1 students who are the beneficiaries of timely filed H-1B petitions. Normally, an employee loses work authorization when his or her EAD card expires. The exceptions have grown so numerous to almost swallow the rule, and the new Form I-9 does nothing to help employers avoid this misstep.
The new Form I-9 is a tweak. It fails to address significant and fairly common situations where a current employee or new hire may have an expired EAD but still have work authorization. The USCIS recommends that employers refer to the I-9 Handbook for Employers or the questions and answers available on the same website. The resources are helpful but add to the employer’s existing burden of completing the deceptively simple two page Form I-9.