Form I-9 Flexibility Rules Extended


Emptech's founder, Jeff Aleixo


Jeffrey Aleixo

Form I-9 Flexibility Extended Immigration Compliance

On November 18, 2020, the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) announced another extension of the Form I-9 flexibility rules issued earlier this year. This marks the fifth time the DHS has relaxed the Form I-9 remote verification requirement and the latest extension is set to expire on December 31, 2020.

It is important to note that timely completion of I-9 employment verification is still required for all employers, and the limited Form I-9 flexibility rules only apply to employers and workplaces operating remotely. Therefore, relaxed remote I-9 verification should be utilized only when no other options exist. DHS has also made some announcements regarding expired and auto-extended List B identity documents.

Limited Form I-9 Flexibility Rules for Evaluation of Identity and Employment Authorization Documents

Form I-9 flexibility rules are relaxed for US employers who transitioned to a completely remote working schedule for all employees due to the COVID-19 pandemic.

Remote employees have to complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A, B, or C. Within three business days of hire, employers are obliged to inspect employees’ documents over a video link, email, fax, or other electronic means, and complete Section 2 of Form I-9. Employers need to retain copies of any documents inspected remotely and enter COVID-19 as the reason for the physical inspection delay in Section 2 Additional Information field. Employers who choose to apply Form I-9 flexibility rules are also required to produce written documentation of their remote onboarding policies upon request.

Once normal operations resume and employees return to the office, employers will have three business days to physically examine the same documents previously reviewed electronically or remotely. Following the physical examination of documents, employers 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.

Designating an Authorized Representative

DHS has not clarified what normal operations refer to and pointed out that the relaxed Form I-9 flexibility rules do not apply if there are employees physically present at a work location. Because many workplaces are operating with employees working both remotely and physically, employers may wish to use authorized representatives to verify or reverify documents in person with employees. Furthermore, the latest version of Form I-9 defines that an authorized representative can be any person the employer designates to complete and sign Section 2 of the Form I-9 on the employer’s behalf. In this case, the employer is liable for any violations in connection with the form or the verification process, including any violations committed by the person designated to act on the employer’s behalf. The option to designate an authorized representative is always available to employers and is not an accommodation due to COVID-19.

Learn how to perform proper and timely completion of Form I-9, prevent costly mistakes caused by non-compliance, and achieve efficiency and consistency in Form I-9 management.

Expired List B Identity Documents

Earlier this year, due to the COVID-19 pandemic, DHS also announced Form I-9 flexibility rules related to certain List B identity documents for Form I-9 completion. According to 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 presented a valid receipt for an acceptable document for Form I-9 purposes. In the case 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, if applicable. They should also enter the term COVID-19 in the Additional Information Field. Once DHS terminates this policy, employees will be required to present a valid unexpired document to replace the expired List B document within 90 days. When an employee presents an unexpired document under this policy, the employer should record the number and other required document information in 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, and such documents 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 also need to attach a copy of the issuing authority’s notice or other confirmation of the document’s extension. In this instance, employees are not required to present renewed or additional List B documents.

I-9 Compliance during the Coronavirus Disease

The onset and aftermath of the novel coronavirus have impacted nearly every aspect of day-to-day life and thousands of employers had to replace physical worksite operations with remote work. Despite these changes, businesses need to comply with the I-9 employment eligibility authorization requirements, as part of the onboarding process. To assist employers in maintaining compliance with Employment Eligibility Verification requirements for new hires, the DHS has introduced and extended Form I-9 flexibility rules and halted the requirement for physical review of employee identification and employment authorization documents. However, compliance with Form I-9 is not easily attainable, and penalties range from $230 to $22,927 per violation. Furthermore, an employer may be subject to criminal penalties if it is convicted of having engaged in a pattern or practice of knowingly hiring unauthorized workers. Therefore, employers should make sure they are using the right Form I-9, enter the proper information, and perform routine self-audits as a way to identify patterns of errors and make timely corrections. Apart from this, employers can transition to an electronic I-9 verification software to simplify and maintain I-9 compliance from any location while onboarding and managing new hires. Such an automated workflow can enable organizations to ensure error-free I-9 processing within stipulated timelines while achieving higher security, compliance, and easier document processing.

Automate I-9 verification to bring consistency to the completion process, reduce human errors, and ensure compliance with necessary regulations that constantly change.
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