Although federal agencies are rallying in some ways to help employers and others cope with the secondary effects of the COVID-19 pandemic, such as by temporarily easing or postponing certain immigration-related requirements, those requirements still apply. Enforcement remains a real risk while many employers and their employees grapple with unprecedented pressures and the need to make drastic adjustments on an emergency basis, such as requiring full-time remote work, closing offices, placing employees on furlough, and even conducting layoffs.
The I-9 Work Authorization Verification Process
The current situation…
- Flexibility in complying with I-9 requirements for those with employees working remotely. Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence immediately.
- Extension of the timeframe for taking action to resolve E-Verify tentative nonconfirmations (TNCs). E-Verify is extending the timeframe to take action to resolve Social Security Administration TNCs, and is also extending the timeframe to take action to resolve Department of Homeland Security TNCs “in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.”
Tips for Employers
- Inspect the I-9 Section 2 documents remotely (e.g., over video link, fax, or email) and obtain, inspect, and retain copies of the documents within three business days of hire while the emergency continues. Enter “COVID-19” as the reason for the physical inspection delay.
- Handle all such I-9 procedures consistently. Avoid unnecessary discrimination complaints and technical violations. The requirements other than immediate physical inspection of documents continue, and diligence remains a best practice.
- When using E-Verify, continue to create cases for new hires within three business days from the date of hire. Use the hire date from the I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the dropdown list and enter “COVID-19” as the specific reason.
- Do not take any adverse action against an employee because an E-Verify case is in interim case status, including while the employee’s case is in extended interim case status.
- Once normal operations resume, all employees who were onboarded using remote verification must report within three business days for in-person verification of identity and employment eligibility documentation. Once the documents have been physically inspected, add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3, as appropriate.
- The Department of Homeland Security (DHS) said that any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.
- If newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. This means it is especially important to ensure technical compliance with all requirements and to document the reason for a COVID-19 delay.
- Consider designating an authorized representative to act on your company’s behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf, DHS said.
- Monitor the DHS and U.S. Immigration and Customs Enforcement websites for updates regarding when the extensions will be terminated and normal operations will resume. DHS said that such monitoring by employers is “required.”
- Evaluate your company’s level of compliance with I-9, immigrant, and nonimmigrant requirements and use of programs, and the likely effects of the pandemic. Use your best judgment and document any COVID-19-related changes in policies or practices.
- Bolster your human resources department’s level of awareness of potential issues, and enlist staff in the effort to address any gaps in compliance and raise awareness company-wide.
Circumstances are rapidly evolving. Contact your WR attorney for help and advice in specific situations.
- “DHS Announces Flexibility in Requirements Related to Form I-9 Compliance,” https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance
- “E-Verify Extends Timeframe for Taking Action to Resolve Tentative Nonconfirmations,” https://www.e-verify.gov/about-e-verify/whats-new/e-verify-extends-timeframe-for-taking-action-to-resolve-tentative