Most employers are already familiar with the Form I-9 protocol as created by the Immigration Reform and Control Act of 1986, but it is key to stay abreast of changes to the process and the form itself in an effort to stay I-9 compliant. Some important changes were recently made regarding refugees and asylees and the Form I-9, specifically Section 6.3 of the M-274. Essentially, the new update includes detailed verbiage reminding employers that refugees and asylees are allowed to present acceptable documents in their possession for the Form I-9.
Refugees and Asylees and the Form I-9 Update
The U.S. Citizenship and Immigration Services has released an update for the Form I-9 manual regarding refugees and asylees. It is critical that employers note and thoroughly understand these new procedures to ensure they are not unintentionally undermining their compliance status with the federal government.
Employers should take care to observe the two following primary guidelines regarding refugees and asylees. These entities are:
- Employment eligible incident to their status and are therefore allowed to work indefinitely as their immigration status does not expire
- Able to present employers with any approved List A or a combination of List B and List C documents to prove their identity and employment authorization
Circumstances of Note Regarding Refugees and the Form I-9
The Department of Homeland Security provides refugees admitted to the United States with a Form I-94, often referred to as an Arrival/Departure Record. This document does not expire.
For a refugee that is going through the hiring process and is asked to fill out a Form I-9, they should put a checkmark next to the category “alien authorized to work.” When coming to the Expiration Date field in that first section of the form, they will simply enter “N/A.” This holds true regardless of if they have an Employment Authorization Document with an expiration date.
When it comes to establishing employment authorization and identity, there are some additional considerations. For example:
- A departure portion featuring an unexpired refugee admission stamp or an electronic Form I-94 with an admission class of “RE” is deemed acceptable for a period of 90 days.
- However, at the end of the 90 days, a refugee must then show an Employment Authorization Document or a combination of documents from List B and List C.
According to the update, a refugee is also allowed to give employers an expired Employment Authorization Document (EAD) with a Form I-797C, Notice of Action only if the document lists the same employment authorization category as the expired EAD. Additional information and more specific guidelines regarding the automatic extension of EADs can be found in Section 4.4 of the manual.
Circumstances of Note Regarding Asylees and the Form I-9
After an individual has been granted asylum in the United States, the federal agency of the Department of Homeland Security issues the asylee a Form I-94 or Arrival/Departure Record.
An asylee can show employment authorization by:
- Presenting a Form I-94 with a specific notation or stamp such as “asylum granted indefinitely”
- Submitting an electronic Form I-94 with an “AY” admission class
While the Form I-94 is an approved List C document that does not expire, asylees presenting it are also required to give an employer a List B document for identity confirmation.
For the purposes of completing a Form I-9 at the time of hire, an asylee must check the category “alien authorized to work” and list the expiration date of Section 1 as “N/A.” This applies to asylees even if they have an expiration date on their Employment Authorization Document.
A key difference between refugee and asylee protocol is that while Employment Authorization Documents are issued to asylees by the USCIS, they are not issued by the Department of Homeland Security and hence are not considered acceptable List C documents.
Why Employers Should Care About the Updates to Refugees, Asylees and the Form I-9 Manual
Employers are held accountable for adhering to federal mandates regarding eligibility and authorization to work for their employees. This means that while portions of the Form I-9 manual could endure some changes, employers are still obligated to observe those changes. Not doing so could negatively impact the employer’s compliance status with the federal government.
Form I-9 protocol violations can yield serious punitive consequences. For every violation that is found, the employer may be penalized. Therefore, if an employer has handled multiple refugees’ or asylees’ employment forms incorrectly due to ignorance over the updated guidelines, each incidence is considered a separate violation. Unfortunately, these violations can stack up quickly and may incur hefty financial penalties that could put a business’ bottom line at risk.
One of the best ways for employers to be cognizant of any upcoming changes to Form I-9 protocol is by enlisting the help of a company with the experience of employment verification attorneys who have an intimate understanding of the complexities and laws regarding I-9 compliance.