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

On February 17, 2021, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will dispose of any E-Verify records older than 10 years on May 14, 2021.  On May 19, the E-Verify Records Disposal Date was extended to June 4, 2021. This notice provides a reminder to employers that participation in E-Verify requires ongoing maintenance;

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 Lurie

With a new Administration moving into Washington D.C. amidst tension and confusion, immigration compliance remains top of mind for employers.  I know that because I hear from H.R. leadership, General Counsel’s offices, administrators running small family businesses, and shift managers at local pizza places across the country.  Some companies tell me they continue to “work from home,” some never left the workplace, and others are operating in a hybrid model.  Whatever the industry, wherever the location, and no matter the size, we are witnessing a significant shift in the onboarding process to produce outcomes similar to those achieved in-person; how we complete the Form I-9 is no exception.

The COVID-19 pandemic continues to disrupt technological barriers that prevented remote work in the past. In doing so, it is forcing changes to the onboarding process while simultaneously addressing health and safety concerns. Employers facing these vexing Form I-9 compliance issues and ongoing confusion are hungry for more explicit directives from the government, and in turn, the government is trying to keep pace.  I am hopeful that the new administration, along with the hardworking career government corps, will recognize these challenges and partner with companies as they create effective and safe processes that meet the challenges of 2021, including those hurdles presented in 2020.

Below, we travel back into 2020 in order to flag concerns and frame various I-9 issues for employers, including a slightly updated set of Form I-9 Examples Related to Temporary COVID -19 Policies posted on I-9 Central’s Temporary Policies Related to COVID-19 page, as well as an October 2020 update to the M-775, E-Verify User Manual, concerning Tentative Non Confirmation (TNC) practices.
Continue Reading What’s New in the New Year? Initial I-9 Musings & Treasures from 2020

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

In anticipation of the 10/21/19 version of the  Form I-9 becoming mandatory for use, on May 1, the U.S. Citizenship and Immigration Service (USCIS) released the new M-274, Handbook for Employers. The M-274 is the handy companion to the Form I-9, and its importance should not be understated. The Handbook contains critical guidance on I-9 compliance, designed to supplement an employers’ understanding of its employment eligibility verification responsibilities and obligations. The M-274 contains 96 pages and should be used in conjunction with the Form I-9 instructions.
Continue Reading The Form I-9 & the New M-274- Handbook for Employers: Like Peanut Butter & Jelly

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

This blogpost has been updated on July 23, 2019 with information regarding the number of audit notices issued.

Seyfarth Synopsis: The temperature may be heating up in the nation’s capital, but Immigration and Customs Enforcement (ICE) is keeping things cool.  ICE Acting Director, Matthew Albence, confirmed that almost 3330¹ Notices of Inspection (NOI) have already been served, across the 50 states and Puerto Rico, initiating Form I-9 audits for companies of all shapes and sizes. It is expected that over 5000 NOIs will be issued before this latest ICE blitz is over. With the current enforcement climate, there may even be a resurgence of pre-dawn enforcement actions – otherwise known as “raids” – to surprise both workers and their employers. Companies should expect penalties to climb sky high, with recent reports of multi-million dollar fines, especially for non-compliant electronic I-9 systems — that’s right, something that has nothing to do with unlawful workers.  It is expected that over 5000 NOIs will be issued during this round of audits

What is an NOI?

An NOI initiates a government administrative inspection of a company’s Forms I-9 to determine whether they are complying with existing law.  U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) leadership considers civil administrative audits to be just one of many tools that ICE can use to reduce the demand for unauthorized unemployment and to protect opportunities for U.S. workers.  The current enforcement strategy includes an expanded use of civil penalties, employer audits, and debarment, as well as the criminal prosecution of employers who knowingly break the law.


Continue Reading ICE Chills the Summer with Thousands of Audit Notices Issued to Businesses Nationwide