The Department of Homeland Security requires that all U.S. employers verify the identity and employment authorization of individuals hired for employment in the United States through Form I-9. Part of that verification has in-person requirements. Due to the COVID-19 pandemic, more employees work exclusively in a remote setting.
This article will discuss the I-9 verification process, how COVID-19 has affected this process, and how U.S. Immigration & Customs Enforcement (ICE) has responded to the changes by allowing extensions on the I-9 compliance flexibility.
U.S. Immigration & Customs Enforcement (ICE) has announced that employers will be granted a 60-day extension for I-9 compliance in light of the COVID-19 pandemic. This announcement comes as a relief to many businesses struggling to keep up with the new normal. The I-9 verification process is critical for all employers. It is important to understand how COVID-19 has affected this process and what steps you need to take to be compliant.
As background, all U.S. employers must complete the I-9 form for all new hires, including citizens and non-citizens. The I-9 form is used to verify an employee’s identity and employment authorization and must be kept on file by the employer for a minimum of three years after the date of hire or one year after the date of termination, whichever is later.
The I-9 form requires some basic information about the employee, such as their name, date of birth, social security number, and address. In addition, the I-9 form requires the employee to provide documentation that proves the employee is authorized to work in the United States. This can include a passport, green card, or other employment authorization document.
The I-9 form consists of three sections: Section 1 is to be completed by the employee, Section 2 is to be completed by the employer, and Section 3 is to be completed if the employee is subject to reverification or rehire.
As of April 1, 2021, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who “physically report to work at a company location on any regular, consistent, or predictable basis.”
If employees were hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19 related precautions, they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.
Additionally, employers may be unable to timely inspect and verify, in-person, the Form I-9 supporting documents of employees hired since March 20, 2020, due to the affected employees being no longer employed by the employer. In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. Any such reason(s) will be evaluated, on a case-by-case basis, by DHS ICE in the event of a Form I-9 audit.
Despite these flexibilities, this does not preclude employers from commencing, in their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.
While this extension is welcome news for many businesses, it is important to note that the I-9 form must still be completed. Employers who fail to do so may face penalties from ICE.
If you have any questions about I-9 compliance or how COVID-19 has affected the process, please contact Direct U.S. Immigration today. We can help ensure that you comply with all I-9 requirements and help you avoid any penalties from ICE. This blog post is not intended to be legal advice. Book a consultation with us today to understand the specifics of your case.