Form I-9

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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.

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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.

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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

On June 16, 2020, U.S. Immigration and Customs Enforcement (ICE) once again announced a 30-day extension of flexibility for the remote completion of Form I-9 (Employment Eligibility Verification), and a dispensation from the usual rule requiring an in-person review of original documents of an employee’s identity and employment eligibility within three days of hire. The flexibility now runs until July 18th.…
Continue Reading ICE Extends Virtual I-9 Flexibility for 30 Days: Announcement Does Not Address Increasing Employer Questions

On May 14, 2020, Immigration and Customs Enforcement (ICE) announced an extension of the flexibilities in rules related to Form I-9 compliance, initially granted on March 20. The ICE notice extends the ability for employers to conduct Form I-9 completions virtually/remotely, for an additional 30 days, or until June 18. The guidance provides an alternative – for a time – to “in-person” I-9 document review in light of precautions necessitated by COVID-19. With the rules relaxed, Section 2 verification or Section 3 reverification can be virtually completed via an online meeting (Skype, Zoom, FaceTime etc.), email, or fax, provided employers retain copies of the documents, and complete the Form I-9 within three business days of an employee starting work. In the original announcement, the Department of Homeland Security (DHS) stated that the virtual/remote process was not available to employers where employees were physically present at a work location. DHS also requires employers availing themselves of this discretion to review the employee’s identity and employment authorization documents in the employee’s presence, once normal operations resume, making the flexibility not so flexible and very time consuming in practice. The process of having to virtually check documentation, and then recheck in person within a tight time frame, has been unworkable for many employers.…
Continue Reading ICE Announces Further Extension of Flexibility in Form I-9 Rules

Late Friday afternoon, April 3, 2020, the Department of Homeland Security posted the following questions and answers in response to stakeholders queries on Form I-9 obligations in the midst of COVID-19.  We applaud the U.S. Citizenship and Immigration Services (USCIS) for taking the lead on coordinating these responses and anticipate they will continue to be responsive to employer queries. The Q&A reiterates the original Immigration and Customs Enforcement (ICE) guidance, including confirming a hard deadline on timing- three days to complete the I-9 initially via a virtual/remote method and then three days to update with an in-person inspection once the business resumes normal operations. The Q&A also provides clarification on how to complete a Form I-9 with an expired driver’s license (sneak peek: use the actual expired date and write COVID-19 on the Form). Curiously the Q&A references electronic systems that don’t offer an additional information box field but suggests attaching a note to the I-9. The Q&A also confirms our suggestion, the person who views the documents  in -person should enter their name and date in the Additional Information Box.…
Continue Reading New COVID-19 Q&As Related to Form I-9 and E-Verify

Virtual Coffee on Virtual I-9s: Immigration Compliance in the Wake of COVID-19

Monday, March 30, 2020  at 11am EDT

Hosted by Seyfarth Shaw and the US Chamber of Commerce

The Department of Homeland Security (DHS) recently issued I-9 and E-Verify guidance in relation to the COVID-19 pandemic. The panel, which includes a former head of …

Seyfarth Synopsis: E-Verify has offered guidance to employers to address concerns with expiring State Drivers’ Licenses and Identification Documents. The guidance, though, fails to address the situation where states have not granted temporary Driver’s Licenses or IDs extensions.

In response to queries sent by Seyfarth and other groups, E-Verify provided additional guidance addressing the COVID-19 National Emergency. We expect E-Verify to release a full  FAQ in the next week. Today’s guidance addresses the expiration of State Drivers’ Licenses and Identification Documents where employees are unable to renew these documents because of closures or limited services at Department of Motor Vehicles (DMVs).  In light of the National Emergency many states have extended the validity of these documents.…
Continue Reading E-Verify COVID-19 Guidance on Expired Driver’s Licenses and State IDs