• United States: USCIS Issues New Handbook for Employers
  • January 26, 2011
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • On January 12, 2011, U.S. Citizenship and Immigration Services (USCIS) released a new version of its "Handbook for Employer" (M-274), the official reference guide for employers conducting the employment eligibility process and completing Forms I-9. The Handbook also covers anti-discrimination provisions of the Immigration and Nationality Act and E-Verify requirements.

    Streamlined Procedures for H-1B Portability Employees

    The new guidance provides simplified procedures for verifying the employment eligibility of H-1B foreign nationals who have “ported” to new employment under the American Competitiveness in the Twenty-First Century Act (AC-21). When an H-1B worker “ports” to new employment, acceptable List A documents are the employee’s passport and the Form I-94 arrival-departure record for his or her previous job. In addition, the employer must write “AC-21” and the date that its Form I-129 nonimmigrant worker petition was submitted to U.S. Citizenship and Immigration Services in the margin of the form next to Section 2.

    In the previous edition of the Handbook for Employers, released in 2009, USCIS reversed decade-long practices for verifying the employment eligibility of H-1B foreign nationals who had exercised AC-21 H-1B portability. The government ceased accepting evidence of mailing of the new employer’s H-1B petition, along with a Form I-94 arrival-departure record issued for the previous job and the foreign national’s passport as List A documents. Instead, employers were required to review the Form I-797 receipt notice for the H-1B petition, which could take many weeks or more to be issued and could delay a needed worker’s employment start date. This was troubling to many in the business immigration community, who advocated strongly for a return to previous practices. The new guidance no longer requires a receipt notice, and in fact goes further to streamline the portability I-9 process by no longer requiring the proof of mailing that was part of pre-2009 practice.

    No Change in Instructions for F-1 “Cap Gap” Employees

    The new guidance makes no change to the requirements for F-1 students who are in the “cap gap” between the expiration of their optional practice training (OPT) period and the effective date of a request to change status to H-1B on October 1 of a given year. For these cases, employees must still provide a Form I-20, Certificate of Eligibility, endorsed for cap-gap employment by a designated school official (DSO) along with evidence of a timely-filed H-1B petition and request to change status to demonstrate employment eligibility.

    This requirement, introduced with the 2009 I-9 guidance, has also caused concern for many employers because getting an I-20 endorsed for cap-gap work by a DSO can be time-consuming and delay employment. Nonetheless, USCIS did not agree to change its policies for these cases. It did remove a requirement to include an I-797 receipt for the H-1B petition, though this does not change the cap-gap I-9 process as a practical matter, since previous guidance allowed employers to accept an expired employment authorization document and Form I-20 in lieu of an I-797.

    Other Changes

    Other clarifications in the Handbook are as follows:

    • Employees with pending extension applications: H-1B and L-1 employees who are the beneficiaries of a timely-filed application for extension of their status are granted a 240-day extension of their work authorization while their petition is pending. USCIS has not changed verification policies for these employees, but advises employers to keep a copy of the Form I-129 extension petition, proof of payment of the filing fee and evidence of the mailing of the petition as part of the I-9 documentation for these cases. 
    • Employee name changes: The new handbook recommends but does not require  employers to update Form I-9 whenever an employee undergoes a name-change.
    What the New Handbook Means for Employers

    The new Handbook brings at least one very welcome change: The new H-1B portability instructions represent a return to simplified procedures for verifying the employment eligibility of these workers. Advocates had hoped that USCIS would also simplify procedures for F-1 cap-gap students, but the agency has reaffirmed that a cap-gap endorsed Form I-20 is still required.

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