Form I-9

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By: Dawn Lurie, Matthew Parker* and Amber Stokes*

On May 4, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced the official sunset date for COVID-19 related Form I-9 physical inspection flexibilities: July 31, 2023. Additionally, ICE advised that employers would have 30 days, or until August 30, 2023, to complete an in-person verification of all employees that were virtually verified since March 2020. Yesterday’s announcement put an end to the speculation of whether the remote policy would run past July, and whether employers would only have three days after the termination of the flexibilities in which to update I-9s. No and No.Continue Reading Ready or Not: Form I-9 Flexibilities are Winding Down

By: Dawn M. Lurie

Seyfarth Synopsis: On April 25, ICE announced its 13th extension, this time for a six-month period (until October 31, 2022), of the I-9 compliance flexibility rules relating to Form I-9. There is no substantive change in this extension of the policy, allowing for the “in-person” exemption (of identity and work authorization document review), benefiting certain employees and offering flexibility for companies that are phasing back in employees. While we are confident that the government is considering a permanent virtual option, we continue to advise employers to work under the assumption that anyone initially verified using the virtual flexibility will be required to conduct an in-person update as employees return to the workplace, especially in cases where identity was not verified (i.e. those that used the fax/email option). 

Lucky #13 – Extension of the COVID I-9 Flexibility

In a thirteenth extension, ending on Halloween 2022, U.S. Immigration and Customs Enforcement (ICE) posted an unprecedented (it’s been a while since I said that word) six (6) month extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities are now extended until October 31, 2022.  The posting on the website is a bit confusing, as it just updates the December 2021 announcement, and includes an alert attached to the top of the page which indicates the new deadline.

ICE’s announcement affirms that employers who are taking COVID-19 related precautions and offering working in remote or hybrid environments, may continue inspecting I-9 documents virtually for newly hired employees as well as for reverification of work authorizations.  See our prior blog for the guidance and discussion on its forward-facing application, noting that ICE will evaluate a company’s situation “on a case-by-case basis” should a company have used virtual without the workforce being 100% remote from March 20, 2020 to March 31, 2021. Given the confusion and lack of guidance surrounding the directive, we remain optimistic that the government will show leniency for early misunderstandings and misapplications of the original policy.Continue Reading Trick or Treat: I-9 Flexibilities Extended until October 31, 2022

By: Dawn M. Lurie and Zachary Blas Perez 

Seyfarth Synopsis: USCIS issued long-awaited guidance on how employers should treat certain E and L spouses’ work authorization based on their status when completing the Form I-9. USCIS also confirmed that it will mail updated notices to E and L spouses, …
Continue Reading New Guidance on E and L Spouse Work Authorization as List C Document

By: Dawn M. Lurie and Zachary Perez

In response to continued lengthy processing delays, the United States Citizenship and Immigration Services (USCIS) posted guidance in early September offering an extension to the time certain processing receipts (Form I-797) may be used as evidence of lawful status, for conditional permanent residents…
Continue Reading Processing Delays Create Need to Extend Validity of Certain Expired Green Cards

Late in the day, on May 26, Immigration and Customs Enforcement (ICE) announced a 90-day extension for remote Form I-9 inspection, allowing flexibilities to continue through August 31, 2021.

While the U.S. appears to have turned a corner in the fight against COVID-19, most companies have yet to formulate and implement back to work policies. Thank you to ICE and US Citizenship and Immigration Services (USCIS), for allowing these employers to head into the holiday weekend without having to worry about the fate of this anticipated extension.  And thank you for the 90 days, rather than the shorter 30 or 60-day extensions issued previously.

The Devil is in the Details

It would not be a exciting blog post, if we didn’t have something interesting to point out. The ICE announcement includes two confusing items:
Continue Reading Nothing “new” Other Than a 90 day Extension of Virtual I-9s

By: Dawn M. Lurie

Seyfarth Synopsis: This announcement extends the flexibilities in rules relating to Form I-9 compliance that was initially granted last year. It also expands the scope of the “in-person” exemption benefit to certain employees, and offers flexibility for companies that are phasing back in employees, as doing so will no longer trigger the in-person requirement for all new hires.  While an improvement in the overall dialogue, the guidance leaves uncertainty regarding the end of I-9 virtual flexibility, and as such, employers should consider moving away from the virtual completion model while continuing to heavily document current practices.

With employers impatiently waiting, the U.S. Immigration and Customs Enforcement (ICE) announced (at 2:00 PM EST on March 31, 2021) another sixty (60) day extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities have been extended until May 31, 2021. The announcement was expected, as a portion of the American workforce is still very much remote, including much of the federal government in Washington, D.C.  However, the delay in the announcement was disappointing, causing unnecessary stress on already fragile H.R. departments.
Continue Reading ICE Warms to the Cold Realities of COVID-19: Latest I-9 Virtual Flexibility Guidance Extended to May 31, 2021

By: Dawn M. Lurie

Today, the U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance that was granted earlier this year.  This announcement was expected in light of the increase in COVID-19 cases across the country. The Department of Homeland Security (DHS) agreed to extend the policy until December 31, 2020.Continue Reading ICE Extends COVID I-9 Rules to December 31-Happy New Year!

Buried within the Immigration and Customs Enforcement (ICE) website is seemingly recent guidance regarding how to update “virtual” Forms I-9 after companies return to “normal business operations.” While it’s unclear when the guidance was actually published, we have been predicting an update to the U.S. Citizenship and Immigration Services (USCIS) Form I-9 Examples Related to Temporary COVID-19 Policies released in late June and further updated on July 27. So the fact that this guidance is now appearing comes as no surprise.

By way of background, on March 20, 2020, the Department of Homeland Security (DHS) announced interim guidelines to temporarily ease I-9 compliance for employers operating remotely as a result of the COVID-19 pandemic. ICE has since issued several extensions to the “virtual” guidance, with the latest one currently set to expire on November 19. Under this guidance, employers are authorized to complete the Section 2 verification or Section 3 re-verification process remotely, relaxing the USCIS Form I-9 instructions mandating an in-person review of work eligibility and identification documents. ICE expects the worksite to be 100% remote to utilize the relaxed guidance. This exception, therefore, is not available when employees are physically present at an employer’s work location.

As we have discussed in prior blog postings, virtual I-9 completion is a “two-touch” process. Physical inspection must take place within three business days after normal operations resume. While “normal operations” have not yet been defined by the government, we expect that individual companies – not the government – will define the resumption of “normal operations.” Accordingly, we continue to recommend that businesses memorialize decisions, including “phase-ins” and other timelines, individual employee anomalies, and any related protocols adopted relating to the timing of returning to work.Continue Reading Hidden ICE Guidance On Virtual I-9s

On September 15, 2020, Immigration and Customs Enforcement (ICE) announced that employers have an additional 60-day extension to the flexibilities in rules related to Form I-9 completion.  This extension relates to the relaxation of the requirement to defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation. Initially granted in March, ICE has issued several extensions, with the latest one now set to expire on November 19, 2020.  ICE previously granted 30-day extensions, but likely offered this longer time frame due to the ongoing COVID-19 pandemic.
Continue Reading ICE Stays the Course and Extends I-9 Flexibility

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. 
Continue Reading The 2020 Summer Defrost Continues: ICE Extends I-9 Flexibility