Federal immigration law requires that all employers in the United States verify both the identity and the employment authorization status of all employees hired after November 1986. This requirement applies to all new hires and, where necessary, requires re-verification of employment authorization in the case of expiring temporary employment authorization (in the case of individuals temporary authorized to work in the U.S.). Employers are required to perform this verification and to maintain records associated with every employee throughout the employee’s tenure and for a specified period of time after departure.
To complete this requirement, employers are required to have all newly hired employees complete Section 1 of the I-9 Form on or before the first day of employment. Section 1 requires the newly hired employee to self-identify the employee’s legal status for employment purposes, including U.S. Citizen or national, lawful permanent resident, or an “alien” temporarily authorized to work in the U.S.
Within three (3) days of the start of employment, an employer’s “official” is required to complete Section 2 of Form I-9. Section 2 requires that the official personally verify acceptable documentation to establish both identity and employment authorization of the new employee. The law requires the official to attest that he or she has personally viewed such documentation and determined that the documentation appears valid and establishes both identity and employment authorization.
The Department of Homeland Security, Immigration and Customs Enforcement (ICE) enforces the I-9 requirements. ICE announced on March 20, 2020, that it was temporarily granting flexibility for employers to remotely verify identity and employment authorization in the case of employees working remotely due to temporary closures related to COVID-19. The flexibility afforded by ICE applies to employees working remotely only. Likewise, ICE’s grant of flexibility does not alleviate the obligation to verify the existence of appropriate documents within three (3) days of hire (defined as commencement of employment), and for an employer’s official to sign the Form attesting to such verification. Once the employee returns to the regular place of employment, the employer must then verify the documentation per the normal requirement, namely that the documents be viewed in-person and separately attested.
The United States Citizenship and Immigration Services (USCIS) has provided guidance on its website for employers regarding how to annotate the I-9 Form to reflect timely remote review and subsequent in-person inspection. USCIS has also provided a detailed set of FAQs to assist employers with special circumstances, such as re-verification, expired documents, documents subject to automatic extension by state or federal agencies, unique considerations for E-Verify registered employers, and other related items.
The initial March 20, 2020, notice from ICE granted Form I-9 flexibility for sixty (60) days. That was later extended an additional thirty (30) days, and was most recently extended another thirty (30) days. The flexibility is set to expire on July 19, 2020. DHS has announced past extensions on its website and, presumably, if another extension is granted, it would do likewise.
Employers of all types continue to deal with operational disruptions and continued remote work arrangements. Recent developments in the ongoing COVID-19 pandemic experience suggests that these remote work circumstances may continue for some time, particularly for certain types of employers and employees who can more easily continue to work remotely. Given that reality, the expectation is that DHS will again extend this flexibility, but there is no guarantee that will occur. Our recommendation is that employers consult the DHS website and USCIS website (using the links above) for purposes of onboarding new employees hired after July 19, 2020.
Employers who were in the midst of an ICE worksite audit or investigation have also been granted extensions of time to respond to a Notice of Inspection (NOI). The NOI response deadline extensions also are set to expire on July 19, 2020.
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