Written by Colleen F. Molner, Esq., Partner, N.C. Board Certified Immigration Law Specialist.
The Form I-9 requires employers to review and record data from employees’ original identity and employment authorization document(s) and assess whether those documents appear to be genuine and specifically connected to the individual presenting them.
The employment eligibility verification requirement was established by the Immigration Reform and Control Act of 1986 (IRCA). U.S. employers typically must complete a Form I-9 Employment Eligibility Verification for every person hired after November 6, 1986.
Proper I-9 management is a persistent risk area for employers. Failure to comply with the IRCA or complete the correct version of the Form I-9 can result in technical or substantive violations and lead to civil and/or criminal sanctions.
The Department of Homeland Security (DHS) eased some requirements relating to Form I-9 compliance in early 2020 because of the COVID-19 pandemic. Below is an update about the status of those changes and details regarding how employers can prepare for the reversion to the permanent rules after the temporary provisions related to the pandemic end.
Completing the Form I-9
There are three sections that make up the Form I-9.
The employee completes Section 1, and the employer completes Sections 2 and 3. The employer is responsible for ensuring that the I-9 is timely and properly completed. This includes ensuring that the employee completes Section 1 upon the date of hire (i.e., first day of paid work).
In Section 1, the employee must attest to their status by checking that they are:
- A U.S. citizen/national; or
- Lawful permanent resident with a green card; or
- An individual who is authorized to work in the United States
Section 2 requires the employer to list the documents produced by the employee to verify identity and employment eligibility. The employer must complete and sign Section 2 within three business days of the date of hire of the employee.
Employers cannot require an employee to produce specific documents, although they are responsible for deficiencies of information.
The employee may present the following:
- One unexpired List A document establishing both identity and work authorization
- One unexpired List B document establishing identity and one unexpired List C document establishing work authorization
Section 3 must be completed, in most circumstances, only when an employee’s authorization or documentation of employment has expired, a process known as reverification.
Typically, the inspection for Section 2 must take place in person, with the identity and employment authorization document(s) physically present. However, the Department of Homeland Security (DHS) has implemented some temporary changes and flexibilities during the COVID-19 pandemic.
Form I-9 flexibilities: Background information
The COVD-19 pandemic led DHS to ease some “physical presence” requirements relating to Form I-9 compliance in March 2020.
It is important to note that the flexibility applies only to workplaces that are operating remotely – in other words, if there are employees physically present at a work location, the remote verification flexibility does not apply and in-person verification is expected.
Further, DHS recently announced that employees who are hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions, are temporarily exempt from the physical inspection requirements until they commence non-remote employment on a regular, consistent or predictable basis or until the extension of the flexibilities is terminated (whichever is earlier).
For those workplaces operating remotely and/or for those exclusively-remote employees hired on or after April 1, 2021, the temporary measures allow employers to inspect new employees’ identity and employment authorization documents via remote methods, further outlined in the following section.
The flexibilities are not a suspension of the I-9 requirements and still require employers to complete the Form I-9 in a timely fashion and in accordance with established law. Therefore:
- New employees still must finish Section I of the Form I-9 on their first date of employment
- Employers must complete Section 2 of the Form I-9 after reviewing documents
- Section 3 should be completed if and when reverification is necessary
Despite the temporarily flexibility in the physical inspection requirement, it is also important to note that a physical inspection of the identity and employment authorization documents must still take place within three days of DHS terminating the remote verification flexibility.
Employers should consult with experienced immigration counsel to ensure their remote workplace and operations qualify for COVID-19-related I-9 flexibilities from DHS.
Specifics about ‘remote verification’ flexibilities
The flexibilities were originally issued in mid-March 2020 as many employers transitioned to a remote work environment because of the COVID-19 pandemic.
The flexibilities were initially implemented for 60 days and have been extended multiple times since. Currently, they will remain in effect until at least Aug. 31, 2021.
The flexibilities introduced a temporary change allowing employers to review the required identity and employment authorization documents while not physically in the same location as the new employee. This inspection can be performed via:
- Shared video chat (Zoom, Skype, FaceTime, etc.)
- Other digital platforms
If using the temporary remote verification option and to ensure compliance with DHS regulations, employers should take the following actions:
- Construct a written remote onboarding and telework policy to use for all new Form I-9s. This written policy should be saved for record-keeping purposes.
- Retain copies of all identity and employment authorization documents presented using remote methods. These can be obtained via email, file transfer and/or fax. Employers also can capture screen shots if the documents are presented on video chat (provided employers and employees are utilizing company issued computers, tablets, phones, etc.).
- Note the delay in physical inspection by writing “COVID-19” in the Section 2, Additional Information field, per the guidance from DHS
The employer should also inform the new hire that a physical inspection of the identity and employment authorization documents must still take place within three days of DHS terminating the remote verification flexibility, whenever that may occur.
In lieu of operating under the temporary provisions, employers may elect to verify I-9 forms through the standard in-person process or by using an “authorized representative” to review documents.
E-Verify and I-9 flexibilities
Employers who use E-Verify are still required to use the program while I-9 flexibilities are in place. DHS, however, has extended the time frame required for employers to resolve Tentative Nonconfirmations (TNCs) because of COVID-19 related delays and closures of Social Security Administration offices.
E-Verify is an Internet-based system operated by the DHS in partnership with the Social Security Administration (SSA).
The online system is a free program that allows an employer to electronically verify employment eligibility of newly hired employees.
While participation in E-Verify is not mandatory for most businesses, some companies may be required by state law or federal regulation to use the program, depending on its number of employees.
Preparing for end of flexibilities
Employers should be aware of current DHS policy and continue to check for updates regarding the status of Form I-9 flexibilities, either through the department’s website or by speaking with experienced immigration counsel.
DHS could end the flexibilities afforded to employers regarding Form I-9 compliance with little to no notice. Once the policy is terminated, employers will have just three business days to re-verify in person the identity and employment authorization documents of new hires that were previously inspected virtually.
Therefore, to avoid potential violations, employers should preemptively develop a plan that will allow them to re-verify identity and employment authorization documents promptly upon notice of termination of the temporary provisions. Proactive planning for this is of particular importance for larger employers who may have a larger number of employees to reverify within a short period of time (three business days).
After the in-person verification, employers should add “documents physically inspected” and the date of inspection on the Form I-9 either in the additional information box of Section 2 or in Section 3, as applicable.