On August 18, 2020, Immigration and Customs Enforcement (ICE) announced that employers have an additional 30-day extension to the flexibilities in rules related to Form I-9 compliance. This relaxation of the requirement to defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation was initially granted in March and will now expire on September 19, 2020. 

What Does this Mean for Employers?

The guidance continues to allow for a “virtual” review of identity and work eligibility documents when completing Form I-9 Section 2 verification or Section 3 reverification. Virtual reviews can be conducted via a video call, email, or fax. (Call us if you are unsure of what a “fax” is and also ask about storing Forms I-9 on microfiche). ICE reminded employers, in today’s announcement, that the “policy only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.” Companies will need to review their eligibility site-by-site to determine if they may utilize the virtual verification policy. Any claim to a nuanced exception should first be discussed with counsel. E-Verify queries should continue to run timely based on the I-9s virtual completion, and should follow the standard timelines. 

The current announcement reminds employers that they are required “to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume” (emphasis added). We found the last part of the directive curious as we understand that individual companies, not the government, will define the resumption of normal operations. Surely, ICE will continue to agree that company policies will determine what a ‘return to business’ looks like. Accordingly, we continue to recommend that businesses memorialize decisions, including “phase-ins” and other timelines, individual employee anomalies, and any related protocols adopted. The government is acutely aware of the wide variety of differences in return to work, even within the same business. The original DHS guidance directed employers to keep “written documentation of their remote onboarding and telework policy for each employee.” Similar to recording what normal business operations look like, we suggest keeping copies of policies, emails from company leadership, website postings, and any other communications, detailing all COVID-19 driven decisions.  

Once business operations resume, employers will have three days to inspect documents in-person. Specifically, for new hires, ensure that Section 2 of the Form I-9 is completed within three days of the employee’s start date. (Section 1 should be completed on or before day 1.) For reverifications, ensure Section 3 is completed before the employee’s work authorization expires. We do not expect that the government will relax timelines as they have been upfront and direct about the importance of sticking to the regulatory schedule. This means:

• Virtual I-9 completion should be completed within three days of hire; and

• Physical inspection should be completed within three days of returning to work.

For that reason, companies should monitor timing, to avoid “late completions” and begin making plans to conduct the necessary in-person inspections. Due to the possibility of an abrupt ending to the ICE virtual guidance, combined with uncertainty surrounding who is “working in the office,” careful consideration of the policy’s shelf life is appropriate. Undoubtedly it was an exceptional and much-appreciated gift from the government that assisted many companies during a challenging time.

However, alternative methods to complete Forms I-9 may now be warranted.  

Authorized Representatives… yay or nay?

Due to the required in-person follow-up and the short timing associated with such a document review, employers seek solutions. Designating an authorized representative to complete I-9s on a company’s behalf is becoming a popular option that has always been an acceptable alternative to the employer directly completing the form. The recent DHS guidance reminds employers of this option and states employers are liable for any violations connected with the form or the verification process committed by the Authorized Representative. The authorized representative method can also be a time saver if correctly crafted and implemented carefully. Since the start of COVID-19, the Seyfarth compliance team has crafted, tested, and audited various authorized representative models, including those that utilize Friends & Family members to complete Section 2 of the Form I-9. Anyone considering the use of an authorized representative should consider all the implications carefully with counsel as the actions of the representative are imputed on the company. Additionally, a document “copy” policy, while not required by the regulations, should be mandatory. Compulsory post-verification completion audits are also recommended. 

Expired List B Documents are Still Acceptable

The most recent ICE update also extends the U.S. Citizenship and Immigration Services (USCIS) temporary policy allowing expired List B documents to be used as proof of identity originally announced in March and reported here. Due to the continuing difficulty of renewing certain identification documents, the government eased the rules. But as with everything else, nothing is ever easy. Like the follow-ups and tracking necessary in a world of virtual I-9s, there are multiple elements to consider. Where expired List B documents are presented, employers may be required to perform follow-ups. When the issuing authority has extended the document’s validity, an employer may accept and record it. However, any expired List B document that was not formally extended by the state’s issuing authority must be treated as a receipt. USCIS has not provided a list of state driver license and ID extensions, but the Department of Defense has you covered. While we cannot vouch for the accuracy of updates, companies have found the DOD’s COVID-19 Response State Issued Driver’s License & ID Card Extension Guidance to be incredibly helpful.

These “receipts” will need to be updated within ninety (90) days after ICE terminates the temporary I-9 policy which is now scheduled to end on September 19. Thus, unless the ICE guidance is extended further, List B receipts will need to be updated, ninety days from September 19, or  December 18, 2020. At that time, the employee will be required to present a valid, unexpired document to replace the expired one recorded at hire. 

For questions regarding these policy changes, I-9 compliance, defending employers involved in worksite enforcement audits or actions, E-Verify compliance, LCA and H-1B compliance and DOJ anti-discrimination matters, contact the Seyfarth Immigration Compliance and Enforcement group or the author, Dawn Lurie, directly at dlurie@seyfarth.com.