Handbook for Employers and use of job Elgibility Verfication Form I-9 – Part III

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By Michael Phulwani

The US Citizenship and Immigration Services has released an updated edition of the M-274, Handbook for Employers on January 15, 2011, which provided detailed information and instructions for completing Form I-9. Pertinent parts of this publication are provided below. This is part 3 of the series of articles on Form I-9.

Exchange visitors (J-1s)

The Department of State administers the exchange visitor program and designates exchange visitor program sponsors. Responsible officers within the program issue Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status. Exchange visitors come to the United States for a specific period of time to participate in a particular program or activity, as described on their Form DS-2019. Only J-1 exchange visitors may use Form DS-2019 for employment when such employment is part of their program. Employment for other J-1 exchange visitors is sometimes job- and site-specific or limited to a few months.

USCIS does not issue Employment Authorization Documents (Forms I-766) to J-1 exchange visitors. However, they are issued several other documents that, when presented in combination, are acceptable under List A of Form I-9: unexpired foreign passport, Form I-94/I-94A and Form DS-2019. If the employee presents this combination of documents when completing Form I-9, ensure that he or she enters his or her admission number from Form I-94/ I-94A in Section 1.

The employer should record in Section 2 (or Section 3 if reverifying) under List A the exchange visitor’s:

lUnexpired foreign passport number, issuing authority, and passport expiration date;l 11-digit Form I-94/I-94A number and its expiration date (including duration of status, which is indicated on the card as “D/S”); and the

l Form DS-2019 number (SEVIS number) and expiration date of employment authorization listed on the form.

Dependents of a J-1 ex-change visitor are classified as J-2 nonimmigrants and are only authorized to work if USCIS has issued them an Employment Authorization Document (Form I-766). A J-2 nonimmigrant’s foreign passport and Form I-94/I-94A are not evidence of identity and employment authorization for purposes of Form I-9.

F-1 and M-1 nonimmigrant students

Foreign students pursuing academic studies and/or language training programs are classified as F-1 nonimmigrant, while foreign students pursuing nonacademic or vocational studies are classified as M-1 nonimmigrant. Designated school officials at certified schools issue Form I-20, Certificate of Eligibility for Nonimmigrant (F-1)/(M-1) Students.

F-1 nonimmigrant foreign students may be eligible to work under certain conditions. There are several types of employment authorization for students, including:

(i) On-campus employment; (ii) Curricular practical training; (iii) Off-campus employment based on severe economic hardship; (iv) Employ-ment sponsored by an international organization; and (v) Optional practical training (OPT).

On-campus employment does not require designated school official or DHS approval but is limited to 20 hours a week when school is in session. On-campus employment must be performed on the school’s premises (including on-location commercial firms that provide services for students on campus, such as the school bookstore or cafeteria), or at an off-campus location that is educationally affiliated with the school. The F-1 student’s unexpired foreign passport in combination with his or her Form I-94/I-94A indicating F-1 nonimmigrant status would qualify as a List A document for Form I-9 purposes.

Curricular practical training allows students to accept paid alternative work/study, internship, cooperative education, or any other type of required internship or pra-cticum that is offered by sponsoring employers through cooperative agreements with the school. The curricular practical training program must be an integral part of the curriculum of the student’s degree program. The designated school official must authorize curricular practical training. The following documents establish the student’s identity and employment authorization for Form I-9 purposes and should be recorded in Section 2 under List A of Form I-9:

– The student’s foreign passport;

– Form I-20 with the designated school official’s en-dorsement for employment on page 3; and

– A valid Form I-94/I-94A indicating F-1 nonimmigrant status.

M-1 students may only accept employment if it is part of a practical training program after completion of their course of study. USCIS will issue the Employment Autho-rization Document (Form I-766) with authorization granted for a maximum period of six months of full-time practical training, depending on the length of the students’ full-time study.

The dependents of F-1 and M-1 foreign students will have an F-2 or M-2 visa and are not eligible for employment authorization.

Optional practical training (OPT) for F-1 students-EAD required

OPT provides practical experience in an F-1 academic student’s major area of study. An F-1 academic student may engage in OPT,  while studying and may work up to 20 hours a week while school is in session and full-time (20 or more hours a week) when school is not in session. After completing their course of study, students   also  may  engage in OPT for work ex-perience. USCIS may authorize an F-1 academic student to have up to 12 months of OPT upon completion of his or her degree program. Some F-1 students may be eligible for an extension of their OPT.

The designated school official must update Form I-20 to show that he or she has recommended OPT and to show the date employment can begin. OPT employment must be directly related to the student’s field of study noted on Form I-20. The student cannot begin OPT until USCIS has granted his or her application for employment authorization.

— To be continued

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