Since its emergence in December 2019, the COVID-19 pandemic has affected everyone around the world. Not since the 1918 flu pandemic has the world faced such a widespread and severe virus. The pandemic significantly has affected the economy at global, national and local levels and altered the daily lives of almost everyone.
One significant effect COVID-19 has had on U.S. businesses is a shift toward a remote workforce. Many employees who would otherwise be working in an office or reporting to a shop now are working from home or reporting directly to a job site. Staff meetings are taking place virtually, and safety meetings are being conducted at remote job sites. As businesses have had to adapt to a changing reality, so, too, has the government and its regulatory agencies.
The ongoing pandemic has required governments to adapt pre-existing laws and regulations governing the normal course of business to address the new COVID-19 reality and related challenges. This is true in the context of Form I-9s and E-Verify. As an employer, you should be aware of new compliance standards and requirements the federal government, through its agencies, has implemented to address the ongoing pandemic.
Remote inspection of documents
Although many employers originally viewed a remote workforce as a short-term solution to the COVID-19 pandemic, remote workforces have continued for many businesses with no definite end in sight.
However, one thing that has remained largely unchanged in 2020 is the natural employee turnover businesses experience (if anything, many businesses have experienced more turnover so far this year). As a result, companies continue to recruit and hire new employees. But for many businesses, the hiring and onboarding process now takes place remotely.
When hiring new employees, you still are required to comply with Form I-9. One of the requirements of Form I-9 is an employee must present the necessary work authorization documentation, and the employer must examine the original documents the employee presents in the presence of the employee.
By extension, E-Verify has the same requirement. However, with many employees now working outside the office and onboarding occurring remotely, many businesses have had to work with employees to complete Form I-9s remotely and are unable to examine the documents in person and in front of the employee. Usually, this would constitute a violation of Form I-9 regulations and noncompliance with the employer’s E-Verify Memorandum of Understanding.
However, on March 20, the Department of Homeland Security and Immigration and Customs Enforcement announced they will exercise discretion with respect to the requirement that employers examine work authorization documents in person and in front of an employee. At this time, ICE does not require physical inspection of documents as long as remote inspection occurs within three business days of the employee’s start date; the employer retains copies of the documents presented remotely; and the employer undertakes physical inspection once normal operations resume. This is a temporary policy that originally was set to expire May 19.
However, since May, DHS and ICE consistently have extended this policy on a monthly basis, and it generally is believed DHS and ICE will continue to do so for the immediate foreseeable future. Although the temporary policy is in effect, the lack of physical examination of an employee’s documents will not constitute a Form I-9 violation and ultimately an E-Verify violation as long as the additional requirements set by DHS and ICE are met.
It is important to note this policy applies only to a remote workforce. Any employee hired to work on premises must follow the standard Form I-9 and E-Verify regulations.
Expired list B documents
When hired for a new job, many employees usually present documents from List B (such as a photo ID) and List C (such as a Social Security card) to establish identity and employment authorization, respectively.
Although List C documents do not carry expiration dates, List B documents often do. Because of the COVID-19 pandemic, many states issued stay-at-home orders that prevented employees from renewing these documents. Even after stay-at-home restrictions were lifted, many agencies remained closed to the public or provided little access to the public for renewals. In addition, many documents require in-person renewal and cannot be renewed online. As a result, several states have issued orders automatically extending some types of identification documents for a certain period of time.
Regardless of whether a particular List B document has been automatically extended, DHS has issued a temporary policy authorizing employers to accept expired List B documents under certain conditions. The policy went into effect May 1 and applies to all List B documents that were set to expire on or after March 1.
The policy addresses two scenarios: a List B document that was set to expire March 1 and was not automatically extended by the issuing authority, or, conversely, a List B document that was set to expire March 1 and was automatically extended by the issuing authority because of COVID-19.
For documents that were not automatically extended, you should treat them as though the employee presented a valid receipt for a renewal of the document. As the employer, you must document the information in Section 2 of Form I-9 and enter “COVID-19” in the “Additional Information” field.
When DHS terminates this temporary policy, employees will have 90 days to provide a valid, unexpired document to replace the expired one presented at the time of hiring. Then, you should enter all information related to the valid, unexpired document in the “Additional Information” field.
For the second scenario where the List B document’s expiration date was automatically extended, the document is treated as an acceptable document for the duration of the extension. You must document the information in Section 2 of Form I-9 and enter “COVID-19 EXT” in the “Additional Information” field. We also encourage you to attach to Form I-9 some documentation related to the extension so it can be referenced, but this is not a requirement.
The key difference between the automatic extension and the lack of extension is the automatically extended document is treated as an acceptable document, as opposed to a receipt for a renewal, and it does not need to be reverified later as long as the employee presented the document to you during the valid extension period. As E-Verify is an extension of Form I-9, the information entered under this temporary policy would be entered into the E-Verify case in the appropriate manner as set forth by the E-Verify User Manual.
Tentative nonconfirmations
Any employer enrolled in E-Verify is no stranger to the “tentative nonconfirmation.” The Social Security Administration or DHS may issue a tentative nonconfirmation when the information from Form I-9 entered into E-Verify does not match the records of either the Social Security Administration or DHS.
To correct a tentative nonconfirmation, the employee must either visit a Social Security Administration office or contact DHS within eight federal business days to proceed with contesting the tentative nonconfirmation. Because of governmental offices closing during COVID-19 and limiting staffing as phased operations resume, it now may be much more difficult for an employee to do either of these things promptly, and employees in some areas are unable to do so at all.
As a result, E-Verify has extended the timeframe to take the necessary steps to correct a tentative nonconfirmation. E-Verify has not specified the length of the extended timeframe nor has it provided any guidance as to when this policy may end. As such, it is best to routinely review the E-Verify website for any new guidance or changes to existing guidance to ensure your company is in compliance.
An ever-changing landscape
The COVID-19 pandemic has profoundly affected economies and businesses around the world. In the U.S., COVID-19 has forced many businesses to change how they operate and manage their workforces, and many of these changes likely will continue for at least the foreseeable future. This challenging time has made compliance with certain regulations more difficult or even impossible, particularly as they relate to Form I-9 and E-Verify.
DHS and ICE have issued temporary policies to address and accommodate the changes COVID-19 has caused. These temporary policies continue to evolve and eventually will expire as the government returns to normal, pre-COVID-19 policies. Given the ever-changing landscape, it is incumbent upon you to diligently monitor evolving regulations to ensure compliance and consult with experts as needed when implementing policies and procedures to address shifting regulatory requirements.
Benjamin Briggs is a managing partner with Cotney Construction Law LLP, Tampa, Fla., and Paul Messina is an attorney with Cotney Construction Law.
Brief background
Form I-9 is a Department of Homeland Security form employers must use to verify employees are authorized to work in the U.S. Lawful permanent residents (green card holders) and U.S. citizens automatically have the right to work in the U.S. but still must complete Form I-9. Employers are required to maintain completed Form I-9s for all current employees and at least one year after an employee’s employment ends.
E-Verify has a website (e-verify.gov) created by DHS that allows businesses to determine the eligibility of employees to work in the U.S. E-Verify compares information in an employee’s Form I-9 with U.S. government records. E-Verify does not replace or eliminate the legal requirement for an employer and employee to complete Form I-9. In other words, E-Verify is in addition to, not in lieu of, Form I-9 compliance. E-Verify mostly is a voluntary program with some exceptions, such as for federal contractors.
Although voluntary, enrollment in E-Verify presents several possible advantages. First, E-Verify allows for near instantaneous verification of an employee’s eligibility to work in the U.S. This prevents the possible issuance of Social Security Administration “no match” letters and, significantly, eliminates the cost and hassle of hiring and training an employee who ultimately may be determined to be ineligible to work in the U.S.
Second, E-Verify allows an employer to extend an F-1 student’s Optional Practical Training work eligibility for an additional 24 months under certain conditions, which provides employers with a potential competitive advantage.
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