By: Bruce Buchanan, Sebelist Buchanan Law

For years, employers and AILA members, through the Verification and Documentation Liaison Committee, have been seeking a change or guidance of what documentation that an employer may accept after initially accepting a receipt as a List A, B or C document. Last week our wishes came true when USCIS issued guidance in this matter which provides employers with common sense flexibility. Although the change is logical, anyone who has worked with the USCIS knows logic is not the strong suit of the USCIS.

The guidance stated:
When employees present a receipt showing that they applied to replace a List A, B, or C document that was lost, stolen or damaged, they should show their employer the replacement document for which the receipt was given. However, this is not always possible due to document delays, changes in status, or other factors.
If the employee does not present the original document for which the previously provided receipt was issued but presents, within the 90-day period, another acceptable document (or documents) to demonstrate his or her identity and/or employment authorization, employers may now accept such documentation.
In cases where an employee presents a document (or documents) other than the actual replacement document, the employer should complete a new Section 2 and attach it to the original Form I-9. In addition, the employer should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment.
As one knows, the applicable regulations, provide that an employer must accept a receipt for the application for a replacement document in lieu of the required document as long the following is true:
  1. The employee is unable to provide the required document within the 3-day period after starting work for pay because the document was lost, stolen, or damaged;
  2. The employee presents a receipt for the application for the replacement document within that same 3-day window; and
  3. The employee presents the replacement document within 90 days of the hire.
Thus, one sees the regulations as well as the M-274 Handbook for Employers have stated employers must request and accept the replacement document for which the receipt was issued. However, logically an employer should be able to present an alternative document if the document for which a receipt was provided is unavailable. This may occur for a variety of reasons:
  1. Employee presented a receipt for a lost EAD but in the 90-day period has adjusted status to permanent residence;
  2. Employee presents a receipt for a lost permanent resident card, and in the interim 90 days, naturalizes to become a U.S. citizen; or
  3. Employee fails to receive the document because of government delays, possibly caused by COVID-19.
At the same time as the issuance of the guidance, the M-274 handbook was updated in Section 4.3.

After this change, employers should take steps to update their I-9 policies and I-9 training materials to reflect this new guidance.

If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at