Form I-9 verification flexibilities initially introduced in March 2020, at the beginning of the COVID-19 pandemic, were extended again and will last until April 30, 2022. The announcement was issued several weeks before the last expiration and benefits both employers and companies as it continues to allow for the in-person exemption of identity and work authorization documents.
There is a possibility that the Department of Homeland Security will continue Form I-9 verification flexibility indefinitely. However, employers should work under the assumption that once employees return to the workplace, anyone initially verified using the virtual flexibility will be required to review and record documents in-person.
Form I-9 Verification Requirements During the Pandemic
Since March 20, 2020, the DHS and Immigration and Customs Enforcement (ICE) have issued different guidance on meeting Form I-9 inspection requirements. Initially, the flexibilities only applied to employers and workplaces that were operating 100% remotely due to the COVID-19 pandemic.
However, this original requirement was changed for hires on or after April 1, 2021, and flexibilities were extended to employers and workplaces that opted for a hybrid remote and onsite work environment. As a result, employers were allowed to delay the in-person Form I-9 verification requirements for remote employees until either they undertake non-remote employment on a regular, consistent, or predictable basis, or the DHS and ICE terminate flexibilities, whichever is earlier.
Public Input Regarding the Virtual Form I-9 Verification
In late October, the DHS requested input from the public with regard to the virtual Form I-9 verification. This gave employers an opportunity to express their views regarding the impacts of remote document examination including the potential costs and benefits of allowing for future remote document examination flexibilities. The DHS also asked for comments on Form I-9 modernization generally, including the current List of Acceptable Documents, and E-Verify challenges in the context of remote document examination. Comments were due on December 27, and all employers could share their experiences and comment directly or through an organization.
In addition to this, on December 7th the Fall Regulatory Agenda was released and DHS has targeted next June 2022 for the release of a proposed rule on remote Form I-9 verification. This indicates that DHS is exploring alternative options to physical Form I-9 document examination that offer an equivalent or higher level of security for identity and employment eligibility verification purposes.Ensure effective management of Form I-9 verification and accurate process of checking identity and employment eligibility with this comprehensive guide.
Preparing for the Potential Expiration of the Flexibility Policy
For the time being, it is unclear if DHS will extend the remote Form I-9 verification policy or not, but employers should consider taking the following steps in anticipation of the potential policy expiration:
- Preparing and maintaining a list of all employees who were hired and verified virtually since March 20, 2020. Such a list should include dates for when employees will return to work on a regular, consistent, or predictable basis, as well as a deadline for in-person verification.
- Designating a person or agent to conduct the in-person verifications.
- Having an agent conduct in-person verification of identity and employment authorization documents for employees while they are working remotely, instead of waiting for the policy to expire.
Employers should also review the newly adopted process for verifying employment authorization for individuals with long-pending H-4, and L-2 EADs. As a result, certain H-4 spouses with pending EAD applications will be entitled to 180-day automatic extensions of their EAD cards while L-2 spouses will no longer need EADs, they will have employment authorization incident to their L-2 status. With respect to Form I-9, USCIS will issue specific guidance. An employee will have to present the expired EAD, the I-797 receipt notice, showing a timely filed renewal application, and an unexpired I-94 showing valid H-4 status. For L-2 dependents, USCIS will issue policy guidance indicating that L-2 spouses are employment-authorized incident to status.
Impacts of Remote Form I-9 Verification Policies
For over three decades, federal law has required every employer to verify that their employees are authorized to work in the United States. A critical component in meeting those requirements is the inspection of the original documents in the employee’s actual physical presence. Otherwise, employers risk facing hefty fines for Form I-9 non-compliance.
Still, the pandemic and the changing composition of the workforce have initiated different changes. Additional extensions of remote Form I-9 verification policies have been a significant relief for employers, allowing them to centralize their I-9 processes, and making it easier to hire individuals who work remotely. Even though it is impossible to predict if DHS will make the Form I-9 verification flexibility policy a permanent one, recent revisions of methods used for conducting remote Form I–9 document examinations seem encouraging.
In anticipation of the expiration or permanent extension of the Form I-9 verification policy, employers should monitor the DHS and ICE workforce enforcement announcements for updates and revise policies regarding Form I-9 completion, storage, and maintenance. To simplify the entire process, they can rely on electronic Form I-9 management and ensure preparation, document storage, and auditing of the Form I-9 compliant with both USCIS and DHS guidelines. Furthermore, this allows employers to solve remote Form I-9 verification issues and inspect work authorization documents with a cloud-based and easy-to-use remote I-9 software.Put an end to inconsistent Form I-9 management and eliminate the possibility of errors leading to penalties by using an electronic I-9 software solution.