COMPLETEING FORM I-9 FOR DACA EMPLOYEES WITH EXTENDED WORK AUTHORIZATION

Background Regarding Recent DACA Changes

On July 28, 2020, the Department of Homeland Security (DHS) issued a policy memo stating that Employment Authorization Documents (EAD) issued to DACA recipients would only be valid for one year. However, on December 7, 2020, a United Stated District Court ordered DHS to issue DACA recipients EAD’s valid for two-years. In order to comply with the District Court Order, DHS is issuing I-797 Extension Notices to DACA recipients who received EAD’s after July 28, 2020 that were only valid for one year. These extension notices extend the validity of their DACA status and EAD’s for an additional year.


Completing the Form I-9

Employees who are DACA recipients and received their last EAD (category C 33) after July 28, 2020 either have received or shortly will receive an Extension Notice extending their EAD’s expiration date. These two documents should be used to complete the following sections on the Form I-9:

- Section 1:

The employee should use the expiration date on the Extension Notice to complete the section entitled “Authorized to Work Until” under Section 1.

- Section 2:

The employer should enter the same date from the Extension Notice as the EAD’s Expiration Date in Section 2. Additionally, the employer should enter the phrase “DACA Ext.” in the “Additional Information” section in Section 2 to confirm that the expiration date was extended by the Extension Notice.

- Section 3:


A. Reverification Prior to EAD Expiring

If a current employee presented an EAD under the C 33 category that was only valid for one year at the date of employment, then the employer can reverify the employee in Section 3 prior to the expiration date on the EAD. However, the employer should not request the Extension Notice if the original EAD has not expired. The employer should only reverify the employee early if the employee presents the Extension Notice to the employer on his own. The employer can reverify such an employee by entering the expiration date from the Extension Notice in the “Expiration Date” field in Section 3. Additionally, the employer should update Section 2 by entering the phrase “DACA Ext.” in the “additional information” section in Section 2, and in a red pen initial and date near the updated information.


B. Reverification After Original EAD Expires

If an employee presented and EAD under the C 33 category that was only valid for one-year and it has expired, then the employer should request updated documents confirming the employee is authorized to work. It is important to note that an employer cannot request specific documents from an employee, and therefore, can not specifically request the Extension Notice. However, the employee may choose to present the Extension Notice, and it should be accepted by the employer as evidence of the employee’s continued authorization to work. The employer can reverify such an employee by entering the expiration date from the Extension Notice in the “Expiration Date” field in Section 3. Additionally, the employer should update Section 2 by entering the phrase “DACA Ext.” in the “additional information” section in Section 2, and in a red pen initial and date near the updated information.


Summary

If you or your business has any questions regarding completing the Form 1-9, or any other immigration related questions, one of our attorneys will be more than happy to speak with you. You can contact our office by phone at 336-334-0034 or leave us a message through our website at www.chapman-immig.com


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