Rule Adjustments for Form I-9

In the face of COVID-19 and the associated need for social distancing and isolation, the Department of Homeland Security (DHS) announced flexibility in some of its Form I-9 related compliance requirements.

Initially set to expire on May 19, the U.S. Immigration and Customs Enforcement (ICE) has extended these rule adjustments for an additional 30 days. (See the 5/14/2020 news release for further information.)

Inspecting physical documents when employees are working remotely

On March 20, 2020, DHS announced that employers with employees taking proximity precautions would not need to review the employees’ ID and employment authorization documents with the employee present. Employers must inspect the documents remotely and obtain, inspect, and retain copies of the documents within three business days in order to complete Section 2.

Once normal operations resume and physical inspection have been done, employers should enter “COVID-19” to the Section 2 Additional Information Field as the reason for the delay. In that same field (or to section 3 as appropriate), they should also add “documents physically inspected” once that has been done.

Employers who use this option are required to provide written documentation of their remote onboarding and telework policies for each employee.

These guidelines apply for 60 days from the date of the notice or within 3 business days after the termination of the National Emergency, whichever comes first. Read the updated DHS news release for additional information.

Temporary Policy for List B Identity Documents

According to an article posted on E-verify, DHS has also issued a temporary policy concerning expired List B documents used for Employment Verification on Form I-9. As a result of COVID-19 closures and restrictions, employees may have been unable to renew some forms of identification, including state driver’s licenses or state ID cards.

An expired document that has not be extended by the issuing authority

Starting May 1, List B identity documents expiring March 1, 2020, or later, and not otherwise extended by the issuing authority, may be treated as if the employee had presented a valid receipt for an acceptable document for Form I-9 purposes.

In this case, employers should do the following:

• Record the document info in Section 2 under List B, as applicable; and
• Enter “COVID-19” in the Additional Information Field

Within 90 days after the DHS terminates this temporary policy, the employee must present a valid, unexpired document to replace the expired one presented when they were hired. Ideally, this will be the replacement of the actual document that was expired. However, if necessary, a different List A or List B document or documents may be chosen, and the new document information would be recorded in the Additional Information Field.

When the employee does present an unexpired document, employers should do the following:

• In Section 2 Additional Information Field:
  • Record the number and other required information from the actual document presented
  • Initial and date the change

An expired document that has been extended by an issuing authority

If the employee’s List B identity document expired after March 1, 2020, and, in response to COVID-19, the issuing authority has extended the document’s expiration date, an employer may accept it as an acceptable List B document (not as a receipt) during the extension timeframe specified by the issuing authority.

In this case, the employer should do the following:

• Enter the document’s expiration date in Section 2, and
• Enter “COVID-19” in the Additional Information Field.

Employers may also attach a copy of a notice or webpage showing the issuing authority has extended the documents. To confirm that their state has auto-extended the expiration date of state driver’s licenses and state IDs, check the state Motor Vehicle Administration or Department of Motor Vehicles’ website.

No further action needed

An employee who has presented an extended document is not required to later present a valid, unexpired List B document.

According to this E-Verify webpage, employers participating in E-Verify should use the employee’s expired List B document number from Form I-9’s Section 2 to create an E-Verify case as usual within three days of the date of hire.

Check the sources

The information above has been sourced from a variety of documents and is intended for general information only. Please see original documents for complete information. DHS continues to monitor the ongoing COVID-19 national emergency and will provide updated information when needed. Employers are required to monitor the DHS and ICE websites for additional information and to find updates on when the extensions will be terminated and normal operations will return.

Sources

News Release: ICE announces extension of flexibility in rules related to Form I-9 compliance

News Release: DHS announces flexibility in requirements related to Form I-9 compliance

E-Verify: Temporary Policies Releated to COVID-19

I-9 Central: Temporary Policies Related to COVID-19

ICE Guidance on COVID-19

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