Status Update for Changes to the Form I-9

In the past several months the Department of Homeland Security has issued two proposed regulatory changes to the Form I-9.  One will be impactful to every employer in the country.  The other will affect select employers who sponsor foreign nationals for work authority under the H-1B, E-3 or CW-1 visa categories.

First, observant employers have noticed that the current I-9 form is set to expire on March 31, 2016.  If you haven’t been using the form set to expire on March 31, 2016 since March 2013 you’ve been performing your I-9 duties incorrectly and now you have the chance to rectify the mistake at least going forward.  There is, however, no available revised I-9 beyond March 31, 2016.  The government has proposed changes and a new form, but until the proposed form new form is approved employers should use the current form until the new one is issued.  The new form may not be available until after March 31, so watch for updates.

Second and more limited, employers have new guidance on completing the Form I-9 for foreign nationals being sponsored on H-1B, E-3 and CW-1 visas.  For these employees employers need to file extension requests before the work authority (visa) expires.  Depending on when the extension request is filed the government may not have approved the extension, however while the request is pending the employee might have continued work authority.  In this situation employees have work authority for up to 240 days after their visa has expired if an extension has been timely filed.  There is no List A, B or C documents reflecting this extended work authority, so DHS now advises employers to write “240-Day Ext” and the date the employer submitted the Form I-129 or Form I-129CW petition to USCIS in Section 2 of the Form I-9.  You will then need to reverify the employee’s work authority before this 240-day period expires by completing Section 3.

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