On February 25, 2015, the U.S. Department of Homeland Security published a Final Rule confirming that certain H-4 spouses will be eligible to apply for U.S. work authorization.  Following is an outline of this new Final Rule and how new H-4 work regulations will be implemented in the near future.

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ARE ALL INDIVIDUALS IN H-4 STATUS NOW AUTHORIZED TO WORK IN THE UNITED STATES?

No.  Only certain individuals in H-4 status are eligible to apply for U.S. work authorization, based on their spousal relationship to an H-1B worker who has reached certain thresholds in his or her permanent, employment-based sponsorship by a U.S. employer.  The criteria for H-4 work authorization eligibility are narrow and specific.  Considerably less than 50% of H-4 spouses will be eligible to apply for work authorization.

Also, eligibility is limited to H-4 spouses only.  Dependent H-4 children are not eligible to apply for work authorization under the new rule.

WHICH H-4 SPOUSES ARE NOW ELIGIBLE FOR WORK AUTHORIZATION?

According to the final rule and new DHS regulations, all of the following criteria must be met to qualify for H-4 work authorization:

  • The H-4 applicant must be married to an H-1B specialty occupation worker;
  • The H-1B worker must be either:
    • a) the beneficiary of an approved I-140 petition
      OR
    • b) the beneficiary of an approved H-1B extension petition beyond the H-1B six-year limit based on AC21 s. 106(a) or (b) (due to having a PERM application or I-140 petition filed and pending for over 365 days, being the beneficiary of an approved I-140 petition, or having an I-485 application filed and pending);
  • The H-1B worker must currently hold valid H-1B status; and
  • The H-4 spouse must currently hold valid H-4 status.

I MEET THE CRITERIA FOR H-4 WORK AUTHORIZATION.  CAN I APPLY FOR U.S. JOBS IMMEDIATELY?

While you could apply for a job, a U.S. employer would not be able to hire you until you have received an official Employment Authorization Document.  Even H-4 spouses who meet all the eligibility criteria are not automatically authorized to work in the United States.  To officially obtain work authorization, you must file an application to U.S. Citizenship and Immigration Services for an Employment Authorization Document (aka “EAD” or “work permit”).  All U.S. employers are required to examine documents which prove your U.S. work authorization shortly after your hire.  If your only work authorization eligibility comes from your H-4 status and you do not have an EAD, no U.S. employer will be able to legally offer you work.

OK, I UNDERSTAND I NEED AN H-4 EMPLOYMENT AUTHORIZATION DOCUMENT (EAD) TO BEGIN WORK.  CAN I APPLY FOR MY EAD IMMEDIATELY?

No.  Changes to U.S. immigration rules and procedures typically require time to be implemented by U.S. government agencies, and this will hold true for the new Final Rule on H-4 spousal work authorization.  U.S. Citizenship and Immigration Services (USCIS) has announced it will begin accepting H-4 EAD applications on May 26, 2015.  Applications filed prior to this date may be rejected or denied.

WHEN THE APPLICATION WINDOW OPENS, WHAT FORM SHOULD I FILE, AND WHAT DOCUMENTS/EVIDENCE WILL I NEED TO SUBMIT ALONG WITH MY APPLICATION?

USCIS Form I-765, Application for Employment Authorization, is the application form which will be used for H-4 EAD applications.  Applications must be accompanied by a filing fee of $380.

Although USCIS has not yet modified its filing instructions for Form I-765 to include specific guidance for H-4 EAD applicants, it would be prudent to prepare evidence addressing all eligibility criteria, i.e.:

  • Marriage Certificate: The H-4 applicant must be married to an H-1B specialty occupation worker;
  • The H-1B worker must be either:
    • I-140 Approval Notice: a) the beneficiary of an approved I-140 petition
      OR
    • H-1B Extension (I-129) Approval Notice, along with Receipt Notice/Proof of Filing dated over 365 days ago for ETA Form 9089 or Form I-140; or I-140 Approval Notice; or I-485 Receipt Notice: b) the beneficiary of an approved H-1B extension petition beyond the H-1B six-year limit based on AC21 s. 106(a) or (b) (due to having a PERM application or I-140 petition filed and pending for over 365 days, being the beneficiary of an approved I-140 petition, or having an I-485 application filed and pending);
  • Current I-94 Record evidencing valid H-1B status, along with recent paystubs from H-1B employer: The H-1B worker must currently hold valid H-1B status; and
  • Current I-94 Record evidencing valid H-4 status: The H-4 spouse must currently hold valid H-4 status.

Before the application filing window opens on May 26, USCIS may issue further guidance as to required supporting documentation, including but not limited to these items.  Be sure to check USCIS’s website at: http://www.uscis.gov/i-765 for full instructions prior to filing.

WHAT CAN I EXPECT FROM THE USCIS APPLICATION PROCESS AND HOW SHOULD I PLAN AHEAD FOR FILING?

Average processing times for EADs, as of the time of this blog publication, are 2-3 months.  The H-4 Final Rule corroborates that USCIS should adjudicate the application within 90 days of receipt.

There are a few collateral considerations you should also keep in mind when preparing to file your H-4 EAD application, including:

  • When does my H-4 status and my spouse’s H-1B status expire?
  • Will the period of validity on my H-4 EAD be limited or foreshortened due to my upcoming H-4 status expiration?
  • Am I eligible to apply to extend my H-4 status right now?  (If so, consider filing your EAD application concurrently with your I-539 extension of status application.)
  • Is my spouse eligible to apply to extend his or her H-1B status right now?  (If so, consider filing your EAD application and your I-539 extension of status application concurrently with your spouse’s I-129 petition.  If the I-129 petition is filed under USCIS’s Premium Processing program, this might be a strategy which would yield faster processing of your applications.)

Note: as of the date of publishing this blog, USCIS has not yet released details regarding the prospective validity period of H-4 EADs, or the prospective processing of concurrently filed applications.

I DON’T PLAN ON WORKING IN THE UNITED STATES.  IS THERE ANY REASON TO APPLY FOR AN H-4 EAD ANYWAY?

Even if you do not plan to work in the United States, receiving U.S. work authorization allows you to apply for and be issued a U.S. Social Security Number.  Some individuals find having a U.S. Social Security Number desirable or useful.

IS THERE ANY REASON I MIGHT NOT APPLY FOR AN H-4 EAD IF I AM ELIGIBLE TO DO SO?

Any applicant who has more than one option for employment authorization should assess which one is the most favorable.  Practically speaking, H-4 EADs will be most useful for individuals which are subject to backlogs in employment-based immigrant visa categories.  These include spouses of H-1B workers from all countries whose employment-based sponsorship is in the EB-3 (third-preference) category, or spouses of H-1B workers from China or India whose employment-based sponsorship is in the EB-2 or EB-3 category.

Other prospective H-4 EAD applicants (i.e. spouses of EB-1 beneficiaries, or non-China/India spouses of EB-2 beneficiaries) may be eligible to immediately apply to USCIS for adjustment of status, and may be eligible for EADs on this basis, without needing to maintain H-4 status.

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The full text of DHS’s Final Rule, including public comments and specific amendments to 8 CFR 214.2(h) and 274a, can be found in the Federal Register at: https://www.federalregister.gov/articles/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses.  An official press release from DHS/USCIS regarding the EAD application process can be found at: http://www.uscis.gov/news/dhs-extends-eligibility-employment-authorization-certain-h-4-dependent-spouses-h-1b-nonimmigrants-seeking-employment-based-lawful-permanent-residence.

 

Effective October 1, 2013, U.S. federal government operations are experiencing a lapse in appropriations due to the inability of Congress to pass a funding bill.  Following are implications on immigration-related government services that may impact employers:

Department of State:  Visa processing.  As of October 1, 2013, visa issuance and full operations are to continue as usual.  However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. 

Department of Labor:  Employees furloughed; operations suspended.

No processing of Labor Condition Applications (LCA) for H-1B or other cases, prevailing wage requests of PERM applications. 

If a PERM application is ready to be filed, has a deadline, and cannot be efiled, mailing the application may be an option, but at the risk of potential processing delays. 

Department of Homeland Security

U.S. Citizenship & Immigration Services (USCIS):  As of October 1, 2013, USCIS reports that “all offices are open worldwide,” including the following:

  • Regional Service Centers and processing centers for applications and petitions
  • Local USCIS offices

USCIS has not reported whether it will accept cases for processing, in particular, H-1B petitions with an LCA not yet certified by the DOL.

Citizenship & Immigration Services (CIS) Ombudsman office:  Employees furloughed; operations suspended. 

Customs & Border Protection (CBP) Port of Entry Operations, including CBP Cargo Security and Revenue Collections, as well as Border Security programs, including Border Patrol and CBP Air and Marine Operations:  Continued operations, because they have been deemed law enforcement necessary or necessary for the safety of life and protection of property.

E-Verify:  Unavailable; operations suspended.  E-Verify, the free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be inaccessible during the shutdown. 

Employers must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system.

While E-Verify is unavailable, according to the E-Verify website, employers will not be able to access the E-Verify account, and as a result, will be unable to do the following:

  • Enroll any company in E-Verify
  • Verify employment eligibility
  • View or take action on any case
  • Add, delete or edit any User ID
  • Reset passwords
  • Edit your company information
  • Terminate an account
  • Run reports
  • View ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify.

In addition, E-Verify Customer Support and related services are closed.  As a result: 

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
  • Telephone and e-mail support will be unavailable.  E-Verify will respond to e-mails sent, when the suspension is lifted.
  • E-Verify webinars and training sessions are cancelled
  • E-Verify Self Check will not be available

The following temporary policies have been implemented:

  • The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. This does NOT affect the Form I-9 requirement—employers still must complete the Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended.  Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact Homeland Security.
  • For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).

Department of Justice (DOJ)

The DOJ has indicated that its trial attorneys and immigration judges will conduct removal (deportation proceedings) only for individuals in federal custody. All other cases are suspended during the shutdown.

Employers must begin using the new version of Form I-9 on May 7, 2013.  U.S. Citizenship and Immigration Services (USCIS) under the Department of Homeland Security (DHS) announced publication of the revised Form I-9 for Employment Eligibility Verification on March 8, 2013.  Employers are required to use the Form I-9 to verify the identity and employment authorization eligibility of employees. 

Changes to the Form

Employers should familiarize themselves with the Form.  It contains several changes, including the following:

The form now has two pages to complete; page one is for the employee to complete, while fields for information about documents reviewed and for the employer certification are on page two.   A warning on the bottom of page 1 — “STOP.  Employer Completes Next Page” – is designed to ensure that the employer does not overlook the second page.

  • Fields for additional data have been added:
    • “Other Names Used” (The “maiden name” field is gone.)
    • Boxes to fill for the Social Security number, instead of an open text field. (The instructions clarify that providing a Social Security Number is optional, unless the employer uses E-Verify, in which case the number must be added to the I-9.)
    • Employee e-mail address and telephone number (The instructions clarify that this information is optional, but that if it is provided, DHS may contact the employee in the event of a mismatch with Social Security records.)
    • “USCIS Number” (Though listed as an alternative to the “Alien Registration Number,” it is the same number.)
    • “Form I-94 Admission Number,” issued by Customs and Border Protection (CBP) on entry to the U.S. – required only if it appears on a work authorization document
    • Foreign passport information
    • On page 2, a field for employee name from Section 1
    • A third set of fields for “List A” identity and employment authorization document information
    • In the “Certification” section, specification that the employee representative is attesting to the following:
      • I have examined the document(s) presented by the above-named employee;
      • The above-listed document(s) appear [sic] to be genuine and to relate to the employee named, an
      • To the best of my knowledge the employee is authorized to work in the United States.
    • Boxes for 3-D Barcode – the purpose of these fields are not described.

The revised form clarifies the timeframe for completion, indicating that “Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, but not before accepting a job offer.” 

Applicability

As indicated on the instructions, the Form is required for newly hired employees.  When rehiring an employee within three years of the date Form I-9 was originally completed, employers have the option to complete a new Form I-9 or complete Section 3 of the previously completed form. 

Document Retention

Regarding document retention, the form instructions indicate that employers may, but are not required to, photocopy documents employees present for completion of the Form I-9, but that photocopies must be retained and presented with Form I-9 in case of an inspection by DHS or other federal government agency.

The I-9 is available on the USCIS website.

 

Why is CBP eliminating paper I-94 cards? CBP believes that filling out and issuing paper I-94 cards is an unproductive use of time, for both government officers and travelers. As part of post-9/11 initiatives put in place nearly a decade ago, information about travelers’ identities, travel documents, and U.S. visas is already in the U.S. government’s possession prior to their arrival to the United States on an air or sea carrier. Arrivals and departures of foreign nationals by air and sea are already registered electronically by DHS through this system. Therefore, CBP’s issuance of paper cards upon admission, and its collection, review, and data entry of cards at admission and departure is no longer a necessary effort. Perhaps more significantly, the manpower necessary to manage the system built on paper cards represents a major cost which the government wishes to eliminate.I am a temporary worker or visitor to the United States. How will I-94 elimination change my admission process? If I won’t have a paper I-94 card, how can I prove my lawful admission? At the time of your entry, you will still have an interview with a CBP officer regarding your purpose of coming to the United States and the length of your stay. Your passport will be stamped, and the stamp will indicate the class of your admission (or parole) into the United States, and a date for expiration of your authorized stay. There will still be an “I-94” record created and attached to your identity, but it will be in electronic, not paper form. CBP has created a website (http://www.cbp.gov/I94), where you will be able to access all the data that used to be on the paper I-94 card hyperlink here. To safeguard against privacy concerns, CBP’s I-94 website will require inputting multiple data points to log in to view the electronic I-94, including the following:

  • first, middle, and last name,
  • passport number,
  • country of citizenship
  • place of entry to the United States
  • date of entry into the United States, and
  • possibly more information.

Reportedly, electronic I-94 admission data will be available online to travelers immediately following admission, and available to DHS stakeholders (e.g., State Departments of Motor Vehicles, Social Security Administration, colleges and universities, etc.) within approximately 24 hours. For travelers who still wish to receive a paper I-94 card, CBP will issue paper cards upon request.

I work at a U.S. company which hires foreign workers. How will I be impacted by I-94 elimination? The absence of paper I-94 cards will change the way workers can provide you with proof of maintenance of status when you are sponsoring them for work-authorized classification. U.S. Citizenship and Immigration Services will expect electronic I-94 printouts to be retrieved and printed from the Internet, and submitted along with immigration petitions, and you may have to assist your workers in accessing this information. Also, I-94 automation for air and sea travelers will change the documents you must accept when verifying a worker’s U.S. employment eligibility on Form I-9 or through the E-Verify system. In addition to paper I-94 cards—which will still be issued to some travelers—companies should be prepared to accept printouts of electronic I-94 data from CBP’s website. This I-94 data should be used to complete I-9 and E-Verify forms just like data from paper I-94 cards. Note that a passport stamp annotated with a work-authorized class of admission (e.g. H-1B) is not an acceptable document for I-9 purposes, and you must continue to fill out I-9 forms using I-94 data only.

I’m worried about errors on my record that will be undetectable until I’ve already completed the admissions process. Are there procedures for CBP to correct errors in electronic I-94 records? With paper I-94 cards, it is easy to spot obvious errors in the date or class of admission which correlate to errors in CBP internal databases, and it is relatively simple to request correction at the time of admission if an error is made. After I-94 automation, errors will likely not be detectable until after a traveler has completed the admissions process and left the CBP/international arrivals area of the airport or seaport. If you note that there is a clear error in your electronic I-94 record, or a discrepancy exists between the admission stamp in your passport and your I-94 record, you will have to appear at a CBP Deferred Inspection office to resolve these issues. We strongly recommend that all travelers with automated I-94s check their online records immediately upon admission to verify their accuracy.

If I don’t have a paper I-94 card, will I still be expected to turn in any documentation, or otherwise report my departure from the United States? According to CBP, in the advent of I-94 automation, you do not need to turn in any documentation at the time of departure, as long as you are departing the United States via air or sea. Departure manifests for air and sea carriers are automatically registered in DHS databases in a similar fashion to arrivals, so your departure from the country will close out your I-94 admission record in the same way your arrival created the record. However, if you depart the United States via a land border, your departure will not be automatically registered, so you will need to affirmatively report your departure. CBP has provided limited guidance regarding how to effectively do this, but we recommend that you print out a copy of your electronic I-94, and give it to CBP or the adjacent country’s border agency (e.g. Canadian Border Service Agency) as you undergo the arrival and inspection process there. Additionally, you might consider asking Canadian or Mexican border officials to date and stamp your passport to confirm your departure from the United States and entry to their country. If you fail to do either of these things, CBP will continue to allow foreign travelers to submit proof of departure from the United States according to these instructions.

I’m a Canadian citizen, so my passport isn’t usually stamped and I’m not usually issued a paper I-94 when I travel. This change won’t affect me, will it? Actually, it may. Canadian visitors traveling to the United States by air or sea will now have electronic I-94 records created and attached to their identity. As such, these individuals will go through the same process as all other foreign travelers, and will likely have their passports stamped and annotated with a visitor class of admission and, in most cases, a six-month period of authorized stay. Canadian visitors will also be able to access their electronic I-94 records online. Keep in mind, again, that I-94 automation will only be phased in at Pre-Clearance Operations at Canadian airports, and that procedures at the land borders will not change. Foreseeably, CBP officers stamping and annotating passports for all Canadian travelers could cause increased wait times for U.S. immigration inspection at Canadian airports. As I-94 automation is phased in for Pre-Clearance locations, we recommend you arrive extra early to the airport or book longer layovers if connecting to U.S.-bound flights.

What other issues should I be aware of?

  • Non-DHS agencies—federal, state and local—may not be fully aware or informed of the elimination of paper I-94 cards, and may still insist on presentation of paper I-94 cards to issue documents and benefits to foreign nationals. At least during the first few months of I-94 automation, we strongly recommend printing a copy of CBP’s public notice regarding the elimination of paper I-94 cards and carrying it with you to any appointment at a federal, state or local agency where you might need to present I-94 data.
  • Electronic I-94 data will only be available on CBP’s website for current, ongoing periods of admission. In other words, once a foreign national with an automated I-94 record departs the United States, his or her admission data will no longer be accessible online. Individuals who wish to maintain detailed information regarding their travel and admission should print and store I-94 records each time they enter the United States.
  • The name linked to each automated I-94 record will reportedly be the name from the individual’s latest U.S. visa. Individuals who have even a small discrepancy between the name listed on their passport and their U.S. visa may experience issues with Departments of Motor Vehicles or other state/local agencies, if they are required to present passport and I-94 documents on which their name is an exact match. (Note that there is no such requirement for employers completing I-9 forms – I-9s can be properly completed as long as passport and I-94 both reasonably appear to relate to the individual presenting the documents. Minor name discrepancies between documents are acceptable.)

 

 

 

U.S. Customs and Border Protection (CBP) has officially announced its intent to eliminate its use of paper I-94 arrival/departure cards, now given to temporary foreign visitors and workers at the time of their admission to the United States. Instead of giving paper I-94 admission cards to foreign travelers, an I-94 record of admission will automatically be created and electronically attached to each traveler’s identity.

CBP will still stamp foreign travelers’ passports at entry, and annotate the stamp with the class of admission and the period of authorized stay. I-94 admission data will also be accessible and printable through an Internet portal, which can be accessed by travelers at http://www.cbp.gov/I94.

CBP reports that the web portal for accessing electronic I-94 information will require multiple data points to log in and view admission data, including the following:

  • Traveler’s name as listed on their passport or U.S. visa;
  • Passport number;
  • Country of citizenship;
  • Date of birth;
  • Date of entry;
  • Place of entry.

Initially, to implement I-94 automation, CBP will begin to stop issuing paper I-94 cards in late April 2013 to travelers arriving by air and sea at certain Ports of Entry. The initiative will be rolled out in phases by region, with the following key provisions:

  • Week 1, beginning April 30, 2013, I-94 automation at airports will occur at Chicago O’Hare, Miami, Charlotte, Orlando and Las Vegas.
  • Week 2, beginning May 07, 2013, I-94 automation is expected at other major airports, including New York, Newark, Boston, Philadelphia, Baltimore/Washington, Detroit and Houston.
  • I-94 automation is expected to be phased into operations at West Coast airports and seaports—including Seattle, Portland, Los Angeles, San Francisco, Hawaii and Alaska— during the week of May 14, 2013.
  • At land border Ports of Entry in Canada and Mexico, temporary visitors and workers entering the United States, will continue to be issued paper I-94 cards until further notice.
  • Individuals in a few select categories of admission, such as asylees and refugees, will continue to be issued paper I-94 cards no matter where they enter the United States.

This change stands to have a wide-ranging impact on both foreign nationals and U.S. businesses. I-94 admissions records are critically important, as they prove foreign nationals’ authorized status and period of stay in the country, and are routinely relied on by federal, state and local government agencies to issue driver’s licenses, Social Security numbers and other documents needed for individuals to live and work in the United States. In turn, these U.S. identity documents are often necessary to facilitate U.S. employment.

I-94 admissions records in the post-paper era will present new challenges and problems as glitches in the new data integration systems are exposed. Accordingly, Human Resources professionals and foreign workers alike should become familiar with the I-94 elimination initiative to attempt to avoid common points of confusion. Lane Powell has published a set of Questions and Answers with more detailed information about I-94 automation and its impact on foreign nationals and U.S. businesses. CBP has also published a press release and a fact sheet regarding this policy change on its website.

 

 

 

 

 

Employers must begin using the new version of Form I-9.  On March 7, 2013, U.S. Citizenship and Immigration Services (USCIS) under the Department of Homeland Security (DHS) announced publication of a revised Form I-9 for Employment Eligibility Verification, effective March 8, 2013.  Employers are required to use the Form I-9 to verify the identity and employment authorization eligibility of employees. 

Changes to the Form

There now are six pages of instructions, and one page with acceptable “List A, B, and C” type documents that the employee may present.  The Form contains several changes, including the following:

The form now has two pages to complete; page one is for the employee to complete, while fields for information about documents reviewed and for the employer certification are on page two.   A warning on the bottom of page 1 — “STOP.  Employer Completes Next Page” – is designed to ensure that the employer does not overlook the second page.

  • Fields for additional data have been added:
    • “Other Names Used” (The “maiden name” field is gone.)
    • Boxes to fill for the Social Security number, instead of an open text field. (The instructions clarify that providing a Social Security Number is optional, unless the employer uses E-Verify, in which case the number must be added to the I-9.)
    • Employee e-mail address and telephone number (The instructions clarify that this information is optional, but that if it is provided, DHS may contact the employee in the event of a mismatch with Social Security records.)
    • “USCIS Number” (Though listed as an alternative to the “Alien Registration Number,” it is the same number.)
    • “Form I-94 Admission Number,” issued by Customs and Border Protection (CBP) on entry to the U.S. – required only if it appears on a work authorization document
    • Foreign passport information
    • On page 2, a field for employee name from Section 1
    • A third set of fields for “List A” identity and employment authorization document information
    • In the “Certification” section, specification that the employee representative is attesting to the following:
      • I have examined the document(s) presented by the above-named employee;
      • The above-listed document(s) appear [sic] to be genuine and to relate to the employee named, an
      • To the best of my knowledge the employee is authorized to work in the United States.
    • Boxes for 3-D Barcode – the purpose of these fields are not described.

The revised form clarifies the timeframe for completion, indicating that “Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, but not before accepting a job offer.” 

60-Day Grace Period

Employers are instructed to use the revised Form I-9 beginning March 8, 2013, as indicated by the designation on the bottom, “Form I-9 03/08/13 N.”  Prior versions of the form (Rev. 08/07/09) and (Rev. 02/02/2009) no longer are available on the USCIS website.  However, within the 60-day period after March 8, that is, to May 7, 2013, employers who use the prior version of the Form are not subject to penalties under the Immigration and Nationality Act, § 274A.

Applicability

As indicated on the instructions, the Form is required for newly hired employees.  When rehiring an employee within three years of the date Form I-9 was originally completed, employers have the option to complete a new Form I-9 or complete Section 3 of the previously completed form. 

Document Retention

Regarding document retention, the form instructions indicate that employers may, but are not required to, photocopy documents employees present for completion of the Form I-9, but that photocopies must be retained and presented with Form I-9 in case of an inspection by DHS or other federal government agency.