ICE Extends Temporary Flexibility for I-9 Forms During Pandemic

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A Form I-9 is required for all new hires to verify their employment eligibility. Before March 2020, employers had to physically inspect original documents the new hires presented for I-9 purposes. After the COVID-19 pandemic started, however, U.S. Immigration and Customs Enforcement (ICE) relaxed the physical inspection requirement, provided the business had no employees reporting to the workplace. Now, the agency has extended the relaxed approach through May 31, 2021, for individuals working remotely, even if the employer has other personnel reporting to work in person.

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5 FAQs About Relaxed I-9 Protocols

What level of I-9 flexibility was granted during pandemic? Under the temporary Form I-9 rules for COVID-19, employers may (1) verify or reverify I-9s based on photocopies rather than original documents, (2) add a note in Section 2 saying “COVID-19,” and (3) set the form aside for the time being.

Once business operations allow for the inspection of original documents or the pandemic emergency ends, whichever occurs first, the employer has three business days in which to inspect the original documents and update each I-9 by adding a note in Section 2 or 3 saying, “Documents physically examined on [date].”

As the employer, you’re responsible for documenting your eligibility to use the temporary I-9 flexibility rule on the basis that no personnel were reporting to the workplace because of your pandemic policy or local lockdown orders.

How is I-9 flexibility expanded through May 31? Under the expanded flexibility rule, which went into effect on April 1, employers with personnel reporting to the workplace may nevertheless use the relaxed Form I-9 protocols for any employees who are still working remotely because of the pandemic.

What risks do employers face by using the I-9 flexibility rule? The most significant concern is the three-day deadline to inspect original documents once any staff return to the workplace or the federal government declares the pandemic emergency is over. Three days don’t allow much time for you to summon all new hires (or employees whose I-9s were reverified during the pandemic) and inspect original documents. Some employers have decided to inspect the physical documents as soon as possible to avoid a compliance problem later when the three-day time limit is triggered.

In any future I-9 compliance audit by ICE, employers will have to prove to the agency’s satisfaction that they were eligible to use the temporary I-9 flexibility rule because no employees were present at the workplace during the pandemic either because of their own policy or local lockdown orders. Technically, if any personnel were present, your company wasn’t eligible to use the rule.

In reality, many employers had manufacturing or maintenance personnel reporting to the workplace during the pandemic. Not present, however, were employees who were qualified and had access to personnel records so they could complete I-9s for the employers. Many employers decided to use the flexible approach even though they technically didn’t seem to qualify under the rules as written. There simply was no other feasible option.

We remain hopeful ICE will (1) issue guidance addressing the practical realities employers faced during the pandemic or (2) exercise discretion in any future I-9 audits to recognize the feasibility issues you encountered.

How can you prepare for I-9 audit after pandemic? Now is the time to make sure any I-9s completed or reverified under the temporary I-9 flexibility rules are complete and document why it was appropriate to follow the approach under the circumstances:

  • Be sure the note “COVID-19” was added in Section 2 for new I-9s or Section 3 for reverifications.
  • Add a note to the I-9 (attach a separate page if no blank space is available on the form itself) stating: “Adopted temporary COVID-19 remote I-9 process as allowed by USCIS because [XYZ]” and explain why you had to do so. For example, the note might explain the only staff on the premises were manufacturing staff who had no access to personnel records and no familiarity with I-9s or weren’t English speakers (or whatever the situation was that necessitated use of the temporary flexibility rule).
  • Attach copies of your policy or the local lockdown order that made it infeasible to inspect original documents at the time.

Also, consider whether operations have changed so that it’s now feasible to inspect the original documents. It makes sense to start this process now and have time to meet with all of the employees whose I-9s were completed or reverified under the temporary rules before the three-day time limit is triggered. If employees will continue to work remotely, you may need to engage agents in a location near them to inspect the documents and complete the forms on your behalf. The inspections can take time to arrange, so don’t wait until the three-day compliance deadline is announced.

Are there special considerations for inspecting documents later (after I-9 was completed)? When you inspect the documents, employees may present different documents than they did before. Their driver’s license may have expired after the I-9 was completed, or they may have lost their green card or other photo identification and had to get a replacement, which may or may not match what they presented the first time.

Keep in mind employers aren’t allowed to dictate the documents the employee presents, and we don’t have guidance from ICE yet about what to do if different documents are presented for inspection under the I-9 flexibility rule. So, if an employee presents different original documents than were presented initially, you should:

  • Add a note to that effect on the I-9;
  • Initial and date the note; and
  • Reverify the I-9 with the new original documents.

When the I-9 documents are physically inspected, add a note in Section 2 for new I-9s or Section 3 for reverifications saying “Documents physically examined on [date]” with the current date at the time.

Use High Degree of Caution

The standard rules and instructions for I-9s are deceptively complicated:

  • Only the employee may complete or change Section 1, and only the employer may complete or change Sections 2 or 3.
  • The current version of the I-9 must be used unless it’s a reverification, in which case the old form may be updated unless there’s no more room on the form for reverifications in which case the new current form must be completed for the reverification.
  • All notes, changes, corrections, and signatures on I-9s must be dated the actual date they are done (no backdating is allowed at any time).
  • If any information is corrected or changed on the I-9 form, the old text must be marked out with a line so that it’s still legible, and all changes must be initialed by the person making the change or correction and dated the current date with no backdating.
  • Explanatory notes may be added in the I-9’s blank areas or in a separate page to explain why a correction or update was needed, for future reference.

ICE’s I-9 instructions are critical, especially if the person presents any document that isn’t obviously noted in Lists A, B, or C. More detailed explanations are provided in the Handbook for Employers M-274, a critical reference when completing I-9s for individuals who aren’t U.S. citizens or lawful permanent residents (e.g., they’re presenting documents, work visas, or other evidence of employment authorization as international students or scholars).

You should conduct Form I-9 self-audits at least every five years to make sure any ICE investigation will go smoothly. The agency issues significant fines, even for minor mistakes. If you need to correct or update an I-9, you should approach the affected employee very carefully to avoid any appearance of discrimination or harassment. If you have questions about how to complete the forms or plan a self-audit, contact your employment counsel for guidance.

Leigh Cole is an attorney with Dinse P.C. in Burlington, Vermont. She can be reached at lcole@dinse.com

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