The U.S. Department of Homeland Security (DHS) has extended its policy of limited flexibility in employer evaluation of original identity and employment authorization document(s) as required by federal I-9 Employment Verification obligations. Importantly, timely completion of I-9 employment verification is still required for all employers, and the limited flexibility outlined below only applies to employers and workplaces operating remotely and should only be utilized when no other options exist. DHS has also announced some options with respect to expired and auto-extended List B identity documents.
For employers and workplaces working remotely, employers may collect, inspect remotely (by video or other electronic means) and retain copies of the employee's documents for purposes of completing Section 2 of the Form I-9. Employers who utilize this option are also required to produce written documentation of their remote onboarding and teleworking policies upon request.
Once the employer's normal business operations resume:
- Employees must present original documents for in-person verification within three business days;
- Employer must enter "COVID-19" in the Section 2 "Additional Information" field once physical inspection takes place to explain the physical inspection delay; and
- Employer should also add "documents physically examined" along with the date originals are inspected in the Section 2 "Additional Information" field or in Section 3, as appropriate.
Please note, DHS makes clear that "(i)f there are employees physically present at a work location, no exceptions [emphasis added] are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis." Employers continue to have the option of designating an authorized representative or agent to conduct in-person I-9 employment verification on the employer's behalf.
Expired List B Identity Documents
Earlier this year, DHS also announced flexibility with the acceptance of certain List B identity documents for Form I-9 completion due to the COVID-19 pandemic. Under this policy, beginning on May 1, List B identity documents that are set to expire on or after March 20, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee completing the I-9 had presented a valid receipt for an acceptable document for Form I-9 purposes. When an employee provides an acceptable List B document that is expired and not extended by the issuing authority, employers should record the document's information in Section 2 under List B, as applicable, and then enter the term "COVID-19" in the Additional Information Field. Once DHS terminates this policy, the employee will then be required, within 90 days, to present a valid unexpired document to replace the expired List B document he or she presented when hired. For employers updating the Form I-9 when an employee presents an unexpired document under this policy, the employer should record the number and other required document information in the Section 2, Additional Information field, and then initial and date the change.
Auto-Extended List B Identity Documents
Some issuing authorities have extended document expiration dates due to COVID-19. In these situations, the document can serve as an acceptable List B document during the extension period specified by the issuing authority. If an employee provides an expired List B document that is otherwise acceptable and has been extended by the issuing authority, the employer should enter the document's expiration date in Section 2, and enter the term "COVID-19 EXT" in the Additional Information field. Employers should also attach a copy of the issuing authority's notice or other confirmation of the document's extension. Also, DHS confirmed that employees are not required to present renewed or additional List B documents in this instance.
DHS has not announced any changes to, or suspension of, the E-Verify employment eligibility verification system, and E-verify registered employers should maintain timely compliance with that program.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.