Due to the precautionary measures that are being implemented by employers and employees in terms of physical proximity associated with the rapid spread of COVID-19, the United States Department of Homeland Security (DHS) has announced that the requirements related to Employment Eligibility Verification (Form I-9) would be made more flexible temporarily.
The USCIS would be exercising discretion in order to defer the physical presence requirements affiliated with Form I-9. Hence, it is now not compulsory for the employees to be physically present when their employment authorization documents are being reviewed.
Further details on how flexible the policy actually has been made, as well as complete guidelines on processing Form I-9 during COVID-19, have been covered in this article.
1. What is the Temporary I-9 Policy?
The remote I-9 policy was initially implemented in March 2020, easing the physical presence requirements related to the Employment Eligibility Verification (Form I-9). The temporary exceptions regarding Form I-9 requirements have recently been extended and are now announced to be in place until normal operations resume.
In order to ensure compliance with USCIS’s guidelines during the current unprecedented circumstances, it is necessary for all employers to follow the recent Form I-9 updates closely when inspecting employment authorization and identity documents remotely, i.e. in the absence of the concerned employee.
2. E-Verify and Form I-9
Employers are now permitted to conduct I-9 document inspection electronically, which means they can E-Verify an employee’s eligibility to work in the United States through an internet-based system that basically compares the information on the Form I-9 with government records.
Those employers who’re utilizing E-Verify are required to complete the physical examination of the Form I-9 documents in the presence of the concerned employee within three business days of resumption of normal business operations.
Form I-9 samples related to the temporary COVID-19 policies have also been made available by USCIS in order to help employers with the complete documentation process, including:
- A remote inspection that the employer would be conducting electronically (E-Verify)
- A physical inspection that must be done immediately after normal business operations are resumed
- List B policies related to COVID-19
But the physical proximity associated with COVID-19 isn’t the only issue that employers are facing during the current pandemic. The List B documents that are used for the renewal of Form I-9 have also become an issue since some of the identification documents may be expired and there’s no way to get them renewed during the COVID-19 crisis.
3. Temporary Policy for List B Identity Documents
DHS has relaxed the rules regarding expired documents as well, and those of the List B documents that expired on May 1, 2020, may be considered valid and acceptable for the verification of Form I-9, even if they haven’t been renewed by the issuing authority.
This means, if a newly hired employee presents any set of expired documents, such as an expired state ID or a driver’s license, the employer must check if it’s acceptable under the temporary COVID-19 policies. Here’s a complete list of all the Form I-9 List B documents that may be considered valid during the pandemic, even if expired:
- ID cards issued by the state, federal, or local government authorities, including a photograph of the concerned employee, name, gender, date of birth, eye color, height, and address
- A school ID card with a photograph
- A voter registration card
- A U.S. military card or draft card
- Military dependent’s ID card
- U.S. Coast Guard merchant mariner document card
- A driver’s license
- Native American tribal document
If an employee provides an expired List B document that’s acceptable under the current circumstances, the employer can use it for identification purposes. In case of accepting an expired document, the employers are required to record the information in Section 2 of List B, as well as enter the word “COVID-19” in the Additional Information Field. The concerned employee would be required to submit a valid and unexpired document in place of what was initially submitted at the time of hiring within 90 days after the temporary COVID-19 policy has been terminated.
After a valid and unexpired document has been submitted by the employee, the employer must enter the required document information again in the Additional Information Field of Section 2. Plus, the date of change must be noted. In case an employee submits an expired List B document that has been extended by the issuing authority, the employer is required to enter the specific document’s expiration date in Section 2. And, in the Additional Information Field, enter the words “COVID-19 EXT”. Because of the temporary policies in effect due to COVID-19, certain H-2B requirements affecting non-immigrants have also been changed in order to reduce the economic impact of the Covid-19 national emergency on H-2B employers.
There have also been amendments in certain H-2A requirements affecting non-immigrants. This has been done to help the U.S. agricultural employers so that they can continue lawful agricultural-related employment without any disruptions caused by the COVID-19 public health emergency.
It is important to note that the Form I-9 requirement flexibility and the temporary COVID-19 policies only apply to those employers or companies that are operating remotely under the current circumstances.
4. A Brief Overview and What is Still the Same?
No changes have been made to the current requirements of Section 1, and it must be completed on the first day of employment. Secondly, for employees who’re physically present at the workplace, there are no changes in the requirements of Section 2. Section 3 of the Employment Eligibility Verification (Form I-9) can be completed remotely as well.
5. The Responsibility of Employers After Normal Business Operations Resume
Once the COVID-19 public health emergency has been lifted and normal business operations resume, it’s the duty of employees to report to their employer for in-person verification of their identity and employment eligibility documents.
All the employers are required to examine the employee’s identity and complete the authorization documentation in his/her presence. After the documentation review has been completed, the employer must enter “COVID-19” in the Additional Information Field as the reason for the delay in the inspection. Also, enter the date of physical examination as well as the name of the person who conducted it.
You can check the original news release for more information regarding how to obtain and remotely inspect identity and employment eligibility documents in compliance with the recent guidelines announced by USCIS.
Additionally, you can also check out the COVID-19 FAQs that have been updated as well by USCIS.
Moreover, as an employer, it’s recommended that you keep monitoring the DHS website to stay updated in case of any further announcements by USCIS in response to COVID-19.