Employers Have Difficulty with Form I-9 Compliance Due to Temporary Final Rule

Employers must complete Form I-9 to verify the identity and authorization to work in the United States of all of their new hires. Most employers remember this as part of the hiring process. However, it is also essential to make sure Form I-9 is kept up for other employees, such as those current employees who may need to renew their work authorization documents.

There are employers who have had difficulties with this due to the Temporary Final Rule that the Department of Homeland Security (DHS) released. The Temporary Final Rule increased the automatic extension period by 360 days, which, when added to the 180-day extension already in effect, gives eligible employees up to a total of 540 days. The DHS put this Rule in place to offer more security to employers and employees while they are waiting for the U.S. Citizenship & Immigration Services (USCIS) to adjudicate their renewal applications. But, the Temporary Final Rule can make staying in compliance with Form I-9 regulations more confusing, thus causing some employers to worry about their liability for errors.

The Temporary Final Rule

The Temporary Final Rule permits individuals who are qualified and have filed their application to renew their work authorization in a timely manner to continue to work for up to 540 days from the date of expiration marked on their Employment Authorization Document (EAD). However, there are some requirements the individuals must meet, such as:

  • They must have Form I-765 (Application for Employment Authorization) pending.
  • The individual must have filed their renewal application in a timely manner.
  • The worker must be applying in the same category of employment.
  • They must have already received Form I-797C notice to confirm that their application has been received.

The Advantages of the Temporary Final Rule

In the past, workers who met the requirements for an extension only received a 180-day extension. Now, they may receive up to a 540-day extension. Additionally, eligible workers who were taken off of the payroll as a result of their EAD renewal applications taking longer than 180 days to be processed are now work authorized as of May 4, 2022, for up to 540 days past the expiration date on their current EAD. Therefore, they can be put back on the payroll.

Individuals who filed their EAD renewal application before May 4, 2022, are allowed to continue working for up to 540 days past the expiration date shown on their current EAD. This applies even if the I-797C receipt they have shows a 180-day automatic extension. Workers who file their EAD renewal application after May 4 will be given an I-797C that will show a 540-day automatic extension.

Form I-9 Compliance

The DHS does have a handbook for employers that contains guidelines as well as instructions for the completion of Form I-9. This handbook does include guidelines related to the Temporary Final Rule. But, there is still some confusion related to the Temporary Final Rule.

One situation creating confusion is when an employee has their EAD renewed before the end of the 540-day extension period, and the new EAD card has an expiration date that is before the end of the 540-day extension. If this occurs, the expiration date on the new EAD card should apply.

Form I-9 compliance can be difficult and confusing with the frequent changes that occur. The best way for employers to stay compliant is to use an electronic I-9 management tool. This tool will guide employers through every step of the process and ensure the Form is completed correctly and safely and is securely stored.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.