Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.
By Michael Phulwani
The US Citizenship and Immigration Services have 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 2 of the series of articles on Form I-9.
Future expiration dates
Future expiration dates may appear on the employment authorization documents of individuals, including, among others, lawful permanent residents, asylees and refugees. USCIS includes expiration dates even on documents issued to individuals with permanent employment authorization. The existence of a future expiration date:
l Does not preclude continuous employment authorization;
l Does not mean that subsequent employment authorization will not be granted; and
l Should not be considered in determining whether the individual is qualified for a particular position.
Considering a future employment authorization expiration date in determining whether an alien is qualified for a particular job may constitute employment discrimination. However, the employer may need to reverify the employee’s authorization to work when certain List A or List C documents expire. For example, the Employment Autho-rization Document (Form I-766) must be reverified on or before the expiration date.
Reverifying employment authorization for current employees.
When an employee’s employment authorization document expires, the employer must reverify his or her employment authorization no later than the date employment authorization expires. The employer may use Section 3 of Form I-9, or, if Section 3 has already been used for a previous reverification or update, the employer may use a new Form I-9. If the employer uses a new Form I-9, the employer must write the employee’s name in Section 1, complete Section 3, and retain the new Form I-9 with the original. The employee must present a document that shows current employment authorization, e.g., any document from List A or List C, including an unrestricted Social Security card. If the employee cannot provide the employer with proof of current employment authorization, the employer cannot continue to employ that person.
Note: US citizens and noncitizen nationals never need reverification. The employer does not have to reverify the following documents: An expired US passport or passport card, an Alien Registration Receipt Card/ Permanent Resident Card (Form I-551), or a List B document that has expired.
Employees, whose immigration status, employment authorization, or employment authorization documents expire should file the necessary application or petition sufficiently in advance to ensure that they maintain continuous employment authorization or valid employment authorization documents. If the employee is authorized to work for a specific employer, such as an H-1B or L-1 nonimmigrant, and has filed an application for an extension of stay, he or she may continue employment with the same employer for up to 240 days from the date the authorized period of stay expires.
Note: The employer must reverify an employee’s em-ployment authorization on Form I-9 no later than the date that the employee’s employment authorization or employment authorization document expires, whichever is sooner.
Reverification and evidence of status for certain categories lawful permanent residents.
Employees, who attest to being a lawful permanent resident in Section 1 of Form I-9, may choose to present a valid Form I-551, Permanent Resident Card, for Section 2 (or Section 3, if applicable). A lawful permanent resident is not required to do so, however, and instead may choose to present a List B and List C document combination, e.g., state-issued driver’s license and unrestricted Social Security card.
If an employee presents a Form I-551, you should know that Forms I-551 may contain no expiration date, a 10-year expiration date, or a two-year expiration date. Cards that expire in 10 years or not at all are issued to lawful permanent residents with no conditions on their status. Cards that expire in two years are issued to lawful permanent residents with conditions on their status. Conditional residents can lose their status if they fail to remove these conditions. Permanent Resident Cards with either an expiration date or no expiration date are List A documents that should not be reverified.
Lawful permanent residents and conditional residents may be issued temporary I-551 documents.
These documents are acceptable for Form I-9 as follows:
l If an employee presents an expired Permanent Resident Card along with a Form I-797, Notice of Action, that indicates that the card is valid for an additional year, this combination is acceptable List C evidence of employment authorization for one year as indicated on Form I-797. At the end of the one-year period, the employer must reverify.
l If an employee presents a foreign passport with either a temporary I-551 stamp or I-551 printed notation on a machine-readable immigrant visa (MRIV), the employer must reverify when the stamp or MRIV expires, or one year after the issuance date if the stamp or MRIV does not contain an expiration date.
l If an employee presents the arrival portion of Form I-94/I-94A containing an unexpired temporary I-551 stamp and a photograph of the individual, this combination of documents is an acceptable List A receipt for the Permanent Resident Card. The employee must present his or her Permanent Resident Card to the employer no later than when the stamp expires, or one year after the issuance date of the Form I-94 if the stamp does not contain an expiration date.
— To be continued…