No, Forms I-94 and I-20 do not establish employment authorization for reverification in the case of F-1 students seeking employment pursuant to optional practical training (OPT), STEM OPT extension, or off-campus employment based on severe economic hardship. If employment authorization is granted in these cases, USCIS issues Form I-765, Employment Authorization Document (EAD) as evidence of employment authorization. If reverifying a student in F-1 status participating in OPT and whose F-1 status and employment authorization has been automatically extended as a result of a timely filed H-1B petition (cap-gap), their expired OPT EAD with endorsed Form I-20 are considered an acceptable List A document. An expired OPT EAD with endorsed Form I-20 are also considered an acceptable List A document in the case of the F-1 OPT student with a pending STEM extension application. The student is authorized to work until USCIS makes a decision on his/her application, but not more than 180 days from the date of the initial OPT EAD expiration date. Please see the M-274 for guidance on reverification and F-1 OPT STEM Extensions and Cap-Gap for students.
The regulations provide that if the individual is continuing in his or her employment, such as may be the case with seasonal employment, and has a reasonable expectation of employment at all times, his or her return to work would not be considered a new hire, so a new Form I-9 is not required. Employers should continue to maintain and store the completed Form I-9 as if there was no interruption in employment. Therefore, the employer should conduct any reverification of employment authorization as necessary.
If the employer determines that the employee was terminated and is now rehired, and the rehire occurs within three years from the date the previous Form I-9 was completed, the employer may complete a new Form I-9 or rely on the previously completed Form I-9. For additional information on continuing employment, refer to the M-274 Part Two, Completing Section 3.
The employee’s foreign passport establishes identity and therefore does not trigger reverification when it expires. In the case of a student, the Form I-94 and I-20 establish employment authorization. Reverification is triggered by the document with the earlier end date. Both documents should be treated as a group; reverification should not be completed each time one of the documents in the group expires. To meet the reverification requirements, the employee may present any document of his or her choice from List A or List C. If the document that the employee chooses to present consists of a combination of documents (e.g., foreign passport with Form I-94 indicating the employee’s nonimmigrant classification that is work authorized incident to status for a specific employer), then all documents must be recorded in Section 3.
No. You cannot refuse to hire persons solely because their employment authorization is temporary. The existence of a future expiration date does not preclude continuous employment authorization for an employee and does not mean that subsequent employment authorization will not be granted. In addition, consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may be an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA.
To continue to employ an individual whose employment authorization has expired, you will need to reverify him or her in Section 3 of Form I-9. Reverification must occur no later than the date that employment authorization expires. The employee must present a document of their choice from either List A or List C that shows either an extension of his or her initial employment authorization or new employment authorization. The employee does not need to present the same document they presented for initial verification. You must review this document and, if it reasonably appears on its face to be genuine and to relate to the person presenting it, record the document title, number, and expiration date (if any), in the Updating and Reverification Section (Section 3), and sign in the appropriate space.
If the version of Form I-9 that you used for the employee’s original verification is no longer valid, you must complete Section 3 of the current Form I-9 upon reverification and attach it to the original Form I-9.
You may want to establish a calendar call-up system for employees whose employment authorization will expire and provide the employee with at least 90 days notice prior to the expiration date of the employment authorization.
You may not reverify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.
NOTE: You cannot refuse to accept a document because it has a future expiration date. You must accept any document (from List A or List C) listed on Form I-9 that on its face reasonably appears to be genuine and to relate to the person presenting it. To do otherwise could be an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA.
If you originally used a version of Form I-9 when verifying the employee that is no longer valid, and you are now reverifying the employment authorization of that employee, the employee must provide any document(s) he or she chooses from either a List A document or a List C document of the employee’s choice from the current Lists of Acceptable Documents. Enter this new document(s) in Section 3 of the current version of Form I-9 and retain it with the previously completed Form I-9. To see if your form is an acceptable version of Form I-9, go to www.uscis.gov/i-9.