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Form I-9 Verification Process Update

Mechelle Zarou

Mechelle Zarou

The following important highlights resulted from the November meeting between the American Immigration Lawyers Association’s Verification and Documentation Liaison Committee, USCIS’s Verification Division, and ICE’s Homeland Security Investigations:

  • F-1 Cap Gap Documentation for I-9 Verification – The M-274, Handbook for Employers lists a cap-gap endorsed Form I-20, along with an expired Optional Practical Training (OPT) Employment Authorization Document (EAD) as a suggested acceptable document for verification purposes. It is not uncommon, however, for schools to unwilling or unable to issue an endorsed I-20 for cap-gap students.  USCIS clarified that the document combination in the M-274 is suggested, but not required. An alternative acceptable combination would be an expired OPT EAD with a Form I-797 H-1B receipt notice.
  • EAD Approval Notice Not Acceptable as List C Document – An I-797 Notice approving an I-765 application is not an acceptable document for I-9 purposes, as it clearly states that it is not evidence of employment authorization. In cases where an EAD was lost in the mail, an employee may present a receipt for the application for a lost EAD and continue to work for 90-days, after which time the employee must present an approved EAD for which the receipt was issued.
  • Field Office Letter as Proof of Employment Authorization – In the case of card production delays, an employee may be able to secure a letter from the local USCIS field office confirming approval of the underlying application and subsequent delay. USCIS takes the position that such a letter, issued to an individual to use as proof of employment, may qualify as a List C#8 document, but only if it states that the individual may use the letter as proof of employment authorization for a specific length of time.
  • Employment Authorization for Individuals in L-2 Status – Despite existing case law, the USCIS position regarding individuals in L-2 status is that an I-94 is not an acceptable document for I-9 purposes. Employees in L-2 status must request work authorization and receive an EAD before starting to work.
  • E-Verify: Employee Re-verification – At present, employers are unable to re-verify an existing employee’s work authorization in E-Verify, and in fact, must not do so. USCIS is working on developing a re-verification process for E-Verify.
  • E-Verify: Employee Rehire – In cases where an employee is rehired, but did not previously have his or her employment authorization verified through E-Verify or, if verified, did not receive an employment authorized result, the employer must create an E-Verify case for the rehired employee.
  • E-Verify: Correcting Typographical Errors – Where incorrect information is entered while creating a case in E-Verify, the employer will need to create a new case with the correct information for the employee. If the case is not yet closed, the employer should close the case by selecting the statement, “The case is invalid because the data entered is incorrect.” If the case is already closed, the employer should make a note either on the E-Verify case details page or on the employee’s Form I-9 explaining that a second case was created because the first case contained incorrect information.
  • Site Visits – USCIS confirmed that its monitoring and compliance division may conduct a site visit prior to a desk review of a given case. Following such a visit, the recommendation letter to the employer may include issues neither disclosed nor discussed during the site visit meetings with the employer.

For more information, please contact Mechelle Zarou at 419.321.1460 or mzarou@slk-law.com.

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