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COVID-19

UPDATED! What Employers Need to Know: I-9 Flexibility & E-Verify

Tonya Fletcher SPHR, SHRM-SCP
by Tonya Fletcher SPHR, SHRM-SCP on September 1, 2021

Our goal is to keep you informed of changes associated with the coronavirus that will impact you as an employer.

Read on to learn about recent changes to E-Verify and I-9 Requirements.

POSTED SEPTEMBER 1, 2021

DHS Further Extends Form I-9 Requirement Flexibility

The Department of Homeland Security (DHS) and U.S. Immigrations and Customs Enforcement (ICE) has announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance was set to expire August 31, 2021. Because of ongoing precautions related to COVID-19, effective September 1, 2021 DHS has extended this policy again until December 31, 2021.

Please see ICE's past news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete section 2 of Form I-9.

 

POSTED JULY 23, 2021

Are You Ready for When Form I-9 Flexibility Ends?


Under this U.S. Department of Homeland Security (DHS) rule, which was first announced on March 20, 2020, if your employees are working remotely as a result of COVID-19, you may initially inspect those employees’ identity and work authorization documents remotely (e.g., by video link, fax, or email) to verify or, if necessary, re-verify, their work eligibility, the rule also makes clear that, once those remote employees commence or resume non-remote work, you must physically inspect their original documents, in person, within three business days. At that time, you must also make a note in the Additional Information field of the employee’s Form I-9, reflecting the date you did this follow-up inspection and who conducted it.

This Form I-9 flexibility rule was initially set to expire on May 19, 2020, but, as the COVID-19 pandemic raged on, DHS extended the rule several times. Initially, the rule applied only to employers and workplaces that were operating entirely remotely, but the flexibilities were later extended to cover all employees working exclusively on a remote basis because of COVID-19. Under its most recent guidance, announced on May 26, 2021, DHS indicated that the flexibility rule would be extended through August 31, 2021.

Over the past months, many employers have used the Form I-9 flexibility rule to onboard employees who were initially hired to work on a remote basis or to re-verify incumbent employees working remotely. However, as the pandemic has subsided, many of those employees are now starting or resuming work at their employers’ regular offices and workplaces.

Employers should remember that, when these remote employees begin working non-remotely, the employer needs to follow up – within three days – to conduct the in-person document inspection. But what if an employee does not fully return to the regular workplace all at once, but instead “phases in” to a more regular routine? DHS has indicated that remote employees covered by the rule are temporarily exempt from the normal Form I-9 in-person inspection requirements “until they undertake non-remote work on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” This does suggest that an employer’s obligation to do the physical inspection does not commence simply because the employee works non-remotely a single time or on isolated occasions.

Employers can do the in-person document inspections before they are legally required. The DHS has stated that the flexibilities “do not preclude employers from commencing, in their discretion, the in-person verification of identity and work authorization documentation” for employees initially verified remotely under the rule.In addition, unless the flexibility rule is extended again, it will expire on August 31, 2021. Employers will then have three days after that to complete the physical document inspections for every employee who was initially verified remotely, regardless of whether that employee is still working exclusively on a remote basis.

For this reason, employers who have taken advantage of the flexibility rule to verify their remote employees are encouraged to develop a plan now to make sure that those employees’ documents are physically inspected on a timely basis and that their Form I-9s are updated as required.

POSTED JUNE 15, 2021

Department of Homeland Security Extends Form I-9 Requirement Flexibility

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) has announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance was set to expire May 31. Because of ongoing precautions related to COVID-19, DHS has extended this policy until August 31, 2021.

Since April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.

Also, employers can use virtual verification (over video link, fax or email, etc.) for remote employees hired on or after April 1, 2021 as long as they work exclusively in a remote setting due to COVID-19-related precautions. They are temporarily exempt from the physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

Please see ICE's past news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete section 2 of Form I-9.

 

POSTED APRIL 1, 2021

Department of Homeland Security Extends Form I-9 Requirement Flexibility And Announces New Guidance

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance was set to expire March 31. Because of ongoing precautions related to COVID-19, DHS has extended this policy until May 31, 2021.

On March 31, 2021 new guidance was included that as of April 1, 2021 the requirement that employers inspect employees’ Form I-9 identify and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.

Employers can use virtual verification (over video link, fax or email, etc.) for remote employees hired on or after April 1, 2021 as long as they work exclusively in a remote setting due to COVID-19-related precautions. They are temporarily exempt from the physical inspection requirements until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

 

POSTED JANUARY 29, 2021

Department of Homeland Security Extends Form I-9 Requirement Flexibility

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance was set to expire January 31. Because of ongoing precautions related to COVID-19, DHS has extended this policy until March 31, 2021.

On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act. This policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. 

 

POSTED DECEMBER 28, 2020

Department of Homeland Security Extends Form I-9 Requirement Flexibility

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance was set to expire December 31. Because of ongoing precautions related to COVID-19, DHS has extended this policy until January 31, 2021.

This provision only applies to employers and workplaces that are operating remotely. See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

FrankCrum will provide updates, but employers can check out the DHS and ICE websites for additional information about when the extensions end and normal operations resume.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. 

POSTED SEPTEMBER 16, 2020

Form I-9 Requirements Flexibility Extended for 60 Days

Due to the continued precautions related to COVID-19, the Department of Homeland Security (DHS) will further extend Form I-9 flexibility for an additional 60 days. The expiration date for these accommodations is now Nov. 19, 2020. Read the recent announcement from the DHS here

 

POSTED AUGUST 19, 2020

Form I-9 Requirements Flexibility Extended for 30 Days

Due to the continued precautions related to COVID-19, the Department of Homeland Security (DHS) will further extend Form I-9 flexibility for an additional 30 days. The expiration date for these accommodations is now Sept. 19, 2020. Read the recent announcement from the DHS here

See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. This provision only applies to employers and workplaces that are operating remotely. Click here for Form I-9 examples.

 

POSTED JULY 30, 2020

Form I-9 Requirements Flexibility Extended 

Due to the continued precautions related to COVID-19, the Department of Homeland Security (DHS) has decided to once again extend Form I-9 flexibility. The expiration date for this flexibility is now August 19, 2020.

This only applies to employers and workplaces that are operating remotely.

 

POSTED JUNE 26, 2020

Form I-9 Examples Related to Temporary COVID-19 Policies

The Department of Homeland Security (DHS) has provided examples of how to remotely inspect documents and then subsequently perform physical inspection. You are not required to update your Form I-9 based on these examples if there are differences. Read more here.

 

POSTED MAY 19, 2020

Form I-9 Requirements Flexibility Extended for 30 Days

In March, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance was set to expire May 19. Because of ongoing precautions related to COVID-19, DHS has extended this policy for an additional 30 days. This provision only applies to employers and workplaces that are operating remotely.

 

POSTED MAY 5, 2020

Temporary Policy for List B Identity Documents

The Department of Homeland Security (DHS) has announced another temporary policy due to the COVID-19 pandemic. Previously announced was, that if a driver’s license or state ID expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19, employers should enter the document’s expiration date in Section 2 under List B and enter, “COVID-19 EXT” in the Additional Information field. This remains the same.

What’s new is that if the state has not extended the expiration date, or maybe the extension has run out, employers may now treat these expired identity documents as receipts. In these cases, the employer should:

  • Record the document information and write “COVID-19” in the additional information field
  • Ask for a replacement document from the employee within 90 days after DHS terminates the temporary policy
  • Enter the replacement document information in Section 2 and initial/date the change

If necessary, the employee may choose to present a different List A or List B document, and the employer would record the new document information in the Additional Information field.

New Form I-9 Mandatory May 1st

The US Citizenship and Immigration Services (USCIS), which is the part of the Department of Homeland Security (DHS) that oversees US citizenship and immigration, published the new Form I-9 at the end of January. Effective May 1, 2020, employers can only use the new version. 

A new Form I-9 is never required for existing employees.

USCIS just released a revised M-274, Handbook for Employers: Guidance for Completing Form I-9,  with expanded information on properly completing Form I-9, Employment Eligibility Verification.

 

POSTED APRIL 13, 2020

Driver's License and State ID Extension

The Department of Motor Vehicles (DMV) in many states have closed indefinitely due to the COVID-19 pandemic. As a result, many states are automatically extending qualifying driver's licenses and state IDs. Eligibility for an extension and the extension period varies by state. If the driver's license or state ID expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19, then it is an acceptable List B (proof of identity) document for the Form I-9.

If an employee's state ID or driver's license is expired on its face but automatically extended by their state due to COVID-19, employers should enter the document's expiration date in Section 2 and enter "COVID-19 EXT" in the additional information field. Employers may also include a notice about the extension or a copy of the state DMV webpage.

Employers can confirm that their state has auto-extended the expiration date of state IDs and driver's licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicle's website.

Questions and answers related to temporary policies for Form I-9 and E-Verify can be found here.

 

POSTED MARCH 25, 2020

E-Verify Extends Timeframes

E-Verify is extending the timeframe to take action to resolve the U.S. Department of Homeland Security (DHS) and Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) in limited circumstances when an employee cannot resolve a TNC due to public or private office closures. You must notify the employee about their TNC result as soon as possible. Employers may not take any adverse action against an employee because the E-Verify case is in interim case status.

DHS Announces Flexibility in I-9 Requirements

The DHS has announced that it will exercise discretion to defer the physical presence requirements associated with Form I-9. Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review documents in the employee’s physical presence.

Employers must inspect the documents remotely (email, fax, video link, etc.) and obtain, inspect, and retain copies of the documents within three business days. Employers should also enter COVID-19 as the reason for the physical inspection delay in the additional information field in Section 2 once physical inspection takes place after normal operations resume. Once the documents have been inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field or Section 3 as appropriate.

These provisions may be implemented for a period of 60 days from the DHS notice or within three business days after the termination of the national emergency, whichever comes first. This provision applies only to employers and workplaces that are operating remotely. Employers that avail themselves of this option must provide written documentation of their remote onboarding and telework policy.

 

Tonya Fletcher SPHR, SHRM-SCP
ABOUT THE AUTHOR
Tonya Fletcher SPHR, SHRM-SCP

Tonya is the Labor Compliance Manager at FrankCrum. In this role, she leads the FrankAdvice team and manages the delivery and content of best practice information to client owners and managers regarding all types of employment related topics. When she’s not at work, Tonya enjoys international travel.