Temporary Flexibility in I-9 and E-Verify Policies Due to COVID-19

Jun 16 2020

Temporary Flexibility in I-9 and E-Verify Policies Due to COVID-19

Up-to-date as of August 20, 2020

In light of the ongoing challenges presented by COVID-19, the Department of Homeland Security (DHS) is making it easier for employers operating remotely to use Form I-9 to verify the identity and employment authorization of individuals hired to work in the United States. Here’s how.

What’s changed with Form I-9 requirements?

Normally, employers are required to review an employee’s Form I-9, identification, and employment authorization documents in person. However, the DHS has temporarily halted this requirement for employers with employees taking physical proximity precautions due to COVID-19.

Instead, those employers may review Form I-9 Section 2 documents remotely — whether that is over a video call or on their own with a faxed or emailed copy of the documents. In the additional information field of Section 2, employers should enter “COVID-19” as the reason for the physical inspection delay.

Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of Form I-9 Section 2 documents. Upon completion of the physical inspection, employers should add “documents physically examined,” the date of physical inspection, and who conducted the inspection in the Section 2 additional information field.

This temporary flexibility in the Form I-9 review and verification process only applies to employers and workplaces that are operating remotely. If employees are physically present at a work location, no exceptions are being implemented for in-person verification of identity and employment eligibility documentation for Form I-9. If newly hired or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate their eligibility on a case-by-case basis.

Originally, the discussed changes in I-9 flexibility were in effect through either May 19, 2020, or three business days after the termination of the COVID-19 National Emergency Declaration (whichever comes first). However, due to ongoing COVID-19 precautions, the DHS has announced several extensions to the requirements. Most recently, the DHS announced another 30-day extension to the flexibility policies, which are now set to expire on September 19, 2020.

What else do employers need to do about the I-9 changes?

In the event employers choose to implement a Form I-9 remote document review policy, they must provide written documentation of their remote onboarding and telework policy for each employee and maintain evidence of meeting this requirement.

Since the coronavirus crisis has caused many states to close their department of motor vehicle (DMV) offices, they’ve announced temporary extensions of expiring identification cards and/or driver’s licenses. For purposes of Form I-9 compliance, the DHS has confirmed that, in certain circumstances, employers may accept identification cards and driver’s licenses that show an expiration date on or after March 1, 2020.

Employers should check with their state DMV office to see if such temporary extensions are in place. If they are, employers must:

Enter the document’s expiration date in Section 2.
Enter “COVID-19 EXT” in the additional information field.
Attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents.

If an employee presents a driver’s license or ID card that expired on or after March 1, 2020, and the state has not extended the expiration policy, employers should:

Record the documentation information in Section 2 under List B, as applicable.
Enter the word “COVID-19” in the additional information field.

Once the DHS terminates this temporary policy, employers must require the employee to provide a valid unexpired document within 90 days. While a replacement for the expired document is preferable, employees may present a different document or documents to meet the I-9 requirements. Upon in-person review of the documents, employers must:

Record the number and other required document information from the actual document presented.
Initial and date the change.

Has anything else changed with Form I-9?

In recent years, the Immigration and Customs Enforcement (ICE) has routinely issued Notices of I-9 Inspections (NOIs) to ensure business owners comply with the Immigration Reform and Control Act. An NOI informs business owners that ICE is going to audit their hiring records, including Form I-9 documents. Normally, employers are provided at least three business days to produce those documents. But, as a result of the pandemic, employers have had difficulty responding to NOIs within the short time permitted. In response, ICE has granted a couple of extensions. However, on July 18, 2020 ICE announced that no additional extensions will be granted after July 19, 2020 to employers that were served NOIs.