5.26.20

As a result of the COVID-19 pandemic, the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services implemented a number of temporary policy measures to minimize the burden on both employers and employees. As states lift their shelter-in-place orders, and as businesses prepare to resume operations, employers must ensure that they meet their compliance obligations with respect to their Form I-9 and E-Verify programs.

Temporary flexibility in completing Form I-9 has been extended

We previously reported that the DHS temporarily relaxed the requirement for in-person physical examination of I-9 documents and extended the deadlines. This “relaxation” was set to expire on May 19, but the DHS has extended it for an additional 30 days. It applies only to employees who are working remotely.

Within three business days of the reopening, all I-9 documentation that was inspected remotely must be inspected physically. Employers should enter “documents physically examined” in the “Additional Information” field of Section 2, or in Section 3 if appropriate, and then date and sign.

With employees who are on site at a work location, employers must follow the regular in-person physical inspection requirements for the Form I-9.

Temporary automatic extension of List B identity documents

Many states closed their Departments of Motor Vehicles due to the pandemic, which has impeded the ability of individuals to renew their expired state driver’s licenses, identification cards, and other List B identity documents. As a temporary measure, the DHS announced that beginning May 1, identity documents found in List B that were set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated as valid.

When an employee provides an acceptable expired List B document, the employer should record the document information in Section 2 under List B, as applicable, and enter “COVID-19” in the “Additional Information” field.

As an alternative, the employee may also choose to present a different List A or List B document, which should be accepted by the employer and recorded in the “Additional Information” field.

Within 90 days of the DHS’s termination of this temporary policy, employees who had presented acceptable expired List B documents are required to present valid unexpired documents to the employer. In Section 2 of the “Additional Information” field, the employer should record the number and other required document information from the document presented, and initial and date the change.

New Form I-9 is now mandatory

As we previously reported, use of the new Form I-9 became mandatory May 1.

Completing E-Verify cases

Employers operating remotely are still required to create cases for new hires in E-Verify within three business days from the date of hire. You must use the hire date from the employee’s form I-9 when creating the E-Verify case. Where E-Verify case creation is delayed due to COVID-19 precautions, or office closures due to COVID-19, the employer should select “Other” from the drop-down list in E-Verify and enter “COVID-19” as the specific reason for the delay. Employers should not take adverse action against an employee because the E-Verify case is in an “interim case status,” including extended interim case status.

Dealing with E-Verify tentative non-confirmations

The DHS may notify an employer that a case entered in E-Verify will require further information to be verified, which results in a Tentative Non-Confirmation case result. A TNC occurs when the information entered by the employer from the employee’s Form I-9 in E-Verify does not match the employee’s records with either the DHS or the Social Security Administration. Issuance of a TNC does not necessarily mean that the employee is not authorized to work in the United States but only that further information is required.

When an employer receives a TNC, it should first check the Form I-9 and verify that all of the employee’s information was entered correctly on the form. The employer must then notify the employee by providing the employee with a copy of the Further Action Notice, which lets the employee know whether the discrepancy is with the SSA, the DHS, or both, and what the employee must do to resolve the TNC.  The employee may elect to contest the TNC, which means the employee must usually visit a Social Security field office in person or call the DHS within eight federal government working days.

Since SSA and DHS offices presently remain closed to the public, the USCIS issued guidance on March 21 that automatically extends the time for employees to take action to resolve TNCs. Employees can wait until SSA and DHS offices reopen. During the waiting period, the employer should not take any adverse action against an employee based on the employee’s interim case status.

ICE enforcement

On March 19, ICE temporarily halted enforcement actions due to COVID-19. Employers who were served a Notice of Inspection from the DHS during the month of March, and who had not already responded, were granted an automatic extension of 60 days. ICE has now granted an additional extension of 30 days to these employers. If you were served with a Notice of Inspection before March 1, you should conduct an internal audit of your I-9 documentation to identify and correct any issues to mitigate damages. You should also understand the penalties for violations, and evaluate and implement a training program to achieve “good faith substantial compliance.”

Now is the time for an internal audit

Although the DHS and ICE have provided some temporary flexibility with regard to the preparation of the Form I-9 and E-Verify, ICE enforcement actions remain ongoing, and an ICE audit could occur at any time. Employers can still face substantial civil penalties for maintaining improper or inaccurate I-9s. Ensuring the proper completion of the I-9 is the most important aspect of compliance, and can protect your business from hefty civil penalties and possible criminal charges.

Therefore, as business and government agencies begin to open, employers who took advantage of the government’s temporary flexibility will need to resume full compliance.  Reopening is also a good time for employers to conduct internal audits to ensure that they have completed I-9s on file for all current employees, that any technical or substantive errors are corrected, and that they are compliant with E-Verify requirements and I-9 retention rules.

We are offering a number of programs to help employers of all sizes in a variety of industries to assess their compliance risks, and to create compliance programs designed to lessen the risk of enforcement actions.

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