DHS & ICE Extend & Expand I-9 Flexibility

For details on the temporary rules on how to remotely inspect identity and work authorization documents and complete I-9 forms, please refer to our earlier e-alert here and the DHS’ examples here showing how to annotate I-9 forms when inspecting remotely and then how to re-verify documents once normal operations resume. Some highlights of the temporary rule are below.

In addition, on August 19, the DHS announced it will temporarily allow additional I-9 flexibility when verifying work authorization with an EAD (Employment Authorization Document) card. Due to COVID-19, the DHS is experiencing delays in EAD card production. Many categories of temporary workers prove their work authorization with EAD cards, such as F-1 foreign student graduates, H-4 spouses, L-2 spouses, asylum and temporary protected status applicants, DACA recipients, and those with green card applications pending. The work authorization for employees in some of these EAD categories is automatically extended for 180 days if they file a timely application to extend their EAD in the same category, but that extension does not apply to H-4 EAD’s and L-2 EAD’s, for example. Instead, they require a new, approved EAD card in hand to extend their work authorization and re-verify their I-9. With EAD processing delays, they are subject to gaps in work authorization, requiring them to stop working while they are waiting for their new EAD cards to arrive in the mail. Under the new, temporary rule announced August 19th, employees can use their I-797 Notice of Action, with a Notice date of December 1, 2019 through and including August 20, 2020, showing that the EAD has been approved to show work authorization for I-9 purposes. It does not prove identity – so it cannot be used for a List A or B document. It can only be used for a list C work authorization document. Employees who avail themselves of this rule must present their employers with new evidence of employment authorization from either List A or List C by December 1, 2020.

Some highlights of the March 20 I-9 Temporary Flexibility Rule:

• Where a workplace is entirely remote due to the COVID-19 crisis, employers can review an employee’s I-9 documents remotely (e.g., over video link/call, fax, or email). The remote examination must still take place within 3 business days of the first paid workday. Later, when “normal” business operations resume and employee are working in the office again, the employee must physically show I-9 documentation to the employer within three business days.

• If there are employees physically present at a work location, then regular, in-person verification of identity and employment eligibility is required. If the employer has some people still working in the office, but the newly hired employee (or the existing employee who needs an I-9 re-verification) is subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

• A List B identity document (ex: driver’s license) that expired on or after 3/1/2020 & is not extended by the issuing authority (ex: DMV) is temporarily valid for I-9 purposes, but the employee must present any valid List B doc within 90 days after the termination of the temporary rule. If the identity document (ex: driver’s license) expired on or after 3/1/2020 & was extended by the issuing authority (ex: DMV), then it is valid for I-9 purposes, and the employee does not need to re-verify it later.

• Employers enrolled in e-verify still have to create their e-verify cases for their new hires within three business days from the date of hire. However, the time to resolve Tentative Non-Confirmations (TNC’s) is temporarily extended. The time to take action to resolve a Social Security Administration (SSA) TNC is extended due to SSA office closures to the public. The time to take action to resolve a DHS TNC is extended only if an employee cannot resolve a TNC due to public or private office closures. If the employee can resolve the DHS TNC with USCIS over the phone or through written communication (including electronic communication), then the DHS TNC timeframe remains at 8 days.

We are monitoring the extension and expansion of the I-9 and e-verify rules and will advise you of any additional changes.