In response to the new challenges presented by the coronavirus pandemic, the Department of Homeland Security (DHS) has announced temporary flexibility in the requirements for completing Form I-9, Employment Eligibility Verification, while employers are operating remotely.DHS also has extended the time in which employers may respond to Notices of I-9 Inspection and the time in which to address certain E-Verify case responses. Some states have begun automatically extending the validity of identification cards and driver’s licenses because of COVID-19. For I-9 purposes, DHS has confirmed that employers may accept such documents as valid List B identity documents under certain conditions explained below.
To complete Form I-9, an employer must meet with its employee to review the document(s) that the employee chooses to present from the I-9 List of Acceptable Documents. The employer must inspect the original document(s) in the presence of the employee to verify a new hire’s identity and employment authorization (Section 2) or to verify an existing employee’s continued employment authorization (Section 3). This in-person physical document inspection must be completed within three business days of hire for new employees and by the date on which employment authorization expires for existing employees for whom reverification is required. With the rapid spread of COVID-19, many employers have begun operating remotely and have struggled to complete in-person document inspection within the required time periods.
To provide some relief to employers that are operating remotely, DHS has announced that it will temporarily defer the in-person document inspection. DHS will allow remote document inspection as follows:
As mentioned, these flexibility procedures are available only to employers that are operating remotely. Employers that have employees physically present at the work location must comply with all I-9 requirements, including in-person document inspection. If such employers face I-9 compliance issues involving newly hired or existing employees who are quarantined or subject to lockdown protocols because of COVID-19, DHS is likely to exercise favorable discretion toward an employer’s good faith efforts. DHS has stated that it will evaluate compliance efforts in those situations on a case-by-case basis.
The coronavirus pandemic has caused many states to close their department of motor vehicle offices and announce blanket temporary extensions of expiring identification cards and/or driver’s licenses. Among others, California, Colorado, Florida, Illinois, Massachusetts, New York, Texas, Virginia, and Wisconsin have done so. The District of Columbia also has made an extension announcement. The scope and length of these extensions vary greatly.
For I-9 compliance, documents must be valid when presented. DHS has confirmed that employers may accept ID cards and driver’s licenses that show an expiration date on or after March 1, 2020, and are covered by a state’s blanket temporary extension because of coronavirus. To rely on such an ID card or license as a List B identification for I-9 compliance, employers must record the document’s actual expiration date in Section 2 and enter “COVID-19 EXT.” in the Additional Information field. DHS recommends that employers also print the relevant state’s announcement confirming the automatic extension and attach that sheet to the Form I-9.
In 2020, Immigration and Customs Enforcement (ICE) has issued Notices of I-9 Inspections (NOIs) at a steady pace across almost every state. Because of the pandemic, employers have had difficulty responding to recent NOIs within the short time permitted for doing so. DHS again has responded by granting an automatic extension of time. For any employers that were served NOIs in March 2020 and have not yet responded, DHS has granted until Monday, May 18, 2020, to respond. At the end of this extension period, DHS will determine if a further extension should be granted.
With one exception, DHS is maintaining its E-Verify compliance requirements during the coronavirus pandemic. Accordingly, the following applies:
Employers must begin using the new version of the Form I-9 on May 1, 2020. This deadline has not been extended. The new I-9 states an issuance date of October 21, 2019.