DHS Extends Form I-9 Compliance Flexibility

The U.S. Department of Homeland Security (DHS) has extended two policies providing employers and employees with flexibility in meeting certain Form I-9 Employment Verification requirements.

DHS EXTENDS VALIDITY OF FORM I-797 FOR I-9 VERIFICATION DUE TO EAD PROCESSING DELAYS

DHS previously announced temporary relaxation of Form I-9 verification requirements pertaining to individuals utilizing an Employment Authorization Document (EAD) for employment, allowing  employees to use a Form I-797, Notice of Action, in lieu of the EAD, as a Form I-9, List C document establishing employment eligibility.  DHS has extended the relaxed Form I-9/EAD verification requirements through  February 1, 2021. To utilize the Form I-797 in lieu of the EAD, the Notice must indicate approval of an Application for Employment Authorization, and must have a Notice date from December  1, 2019 and through and including August 20, 2020.  Additional information is available at Gibney’s insights.

DHS EXTENDS FORM I-9 COMPlIANCE FLEXIBILITY DUE TO COVID-19

In March 2020, DHS implemented a policy relaxing the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. DHS has extended Form I-9 compliance flexibility for qualifying  employers until December 31, 2020.

Who does the Policy Affect?

Form I-9 in-person inspection rules are relaxed for any U.S. employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy  states that “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.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed rules for qualifying employers with a total remote workforce will remain in place until December 31, 2020, and could be extended further.

Gibney is  closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.