On March 20, 2020, the Department of Homeland Security (“DHS”) announced that it would relax its “physical proximity” requirements associated with completion of Section 2 of the Form I-9. Employers can take advantage of this relaxed standard ONLY IF the entire workforce is completely working remotely. If there are employees physically present at the employer’s worksite, there is no exception to the in-person requirement for reviewing original documents for the Form I-9. However, note, DHS will look at the situation on a case-by-case basis if the employee cannot be physically present due to a quarantine or lockdown order. This relaxed standard will be applicable for a period of 60 days from March 20th or within 3 business days after the termination of the National Emergency, whichever comes first.
If the exception applies the employer must do the following to compete Section 2 of the Form I-9 within 3 days of the employee’s first day of work for pay:
Inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.)
Obtain, inspect, and retain copies of the documents
Complete Section 2
After normal business operations resume, the employee and employer must do the following:
Employee must bring in the original documents that were used to support the Form I-9 within 3 business days so the employer may review them.
After the employer physically reviews the document in person, they should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
The employer should also add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
As an alternative, an employer may designate an authorized representative to complete and sign Form I-9 on their behalf. Note the employer is liable for that person’s actions related to completing the Form I-9 and Form I-9 compliance.
USCIS has established new temporary policies that apply to the E-verify process:
Employers are still required to create cases for their new hires within three (3) business days from the date of hire.
Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.
Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.
Further, on March 21, 2020, USCIS announced that it is extending the time frame to take action to resolve Social Security Administration (SSA) and DHS Tentative Nonconfirmations (TNCs) due to closures. The employer must notify the employee about their TNC result as soon as possible. After the employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of the employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS.
On January 31, 2020, the United States Citizen and Immigration Services (USCIS) announced the release of a new version of the Form I-9, version 10/21/2019. This new version contains only minor changes to the Form I-9 itself and to the Form I-9 instructions.
The one key thing employers must be aware of is that the issuance of the new version of the Form I-9 impacts what version an employer may use going forward. According to the USCIS press release, until April 30, 2020, employers can use either: (1) the new Form I-9, version 10/21/2019 or (2) Form I-9 with a revision date of 07/17/2017 N. On May 1, 2020 employers must use version 10/21/2019 and no other versions of the form will be acceptable for newly completed Form I-9’s as of that date.
The issuance of a new form I-9 DOES NOT mean that employers must redo previously completed Form I-9’s. As stated, this new version will be used on a going-forward-basis no later than May 1, 2020.
The new Form I-9 and related materials can be found here:
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We have seen a major increase in 2018 of Form I-9 audits from the Immigration and Customs Enforcement (ICE). First we saw 122 companies audited in California in February 2018. Next, we saw a number of companies in the Chicagoland area and throughout the Midwest receive Form I-9 audits in March 2018. Then, just weeks ago ICE made a number of arrests in the Chicagoland area.
This increase in activity is not showing any signs of slowing. In fact, we anticipate I-9 audits to increase and are aware of ICE hiring additional agents in the Chicago area to assist in the increase of Form I-9 audits.
What should a company do in light of ICE’s increased audits?
First, you need to ensure that your employees responsible for the Form I-9 process understand the Form I-9 requirements. The Form I-9 has changed a number of times over the last couple of years and we are finding that those changes are not necessarily understood by employers. Make sure you are using the most recent form.
Second, you should audit your Form I-9’s, either on your own, or have an attorney assist you to help identify and correct technical Form I-9 errors. A self-audit before ICE arrives can assist in reducing your liability during an ICE audit.
Third, you need to have a plan if ICE audits your Form I-9’s. Your plan needs to include what to do the day ICE arrives along with what to expect from the audit process and potential ramifications on your business.
On July 17, 2017, the United States Citizen and Immigration Services (USCIS) announced the release of a new version of the Form I-9, version 07/17/17 N. This new version of the Form I-9 does not have sweeping substantive changes like the current form issued in November 2016. In fact, the changes are primarily re-naming and re-numbering.
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The one key thing employers must be aware of is that the issuance of the new version of the Form I-9 impacts what version an employer may use going forward. According to the USCIS press release, until September 17, 2017, employers can use either: (1) Form I-9 revised version (07/17/17 N) or (2) Form I-9 with a revision date of 11/14/16 N. On Sept. 18, 2017 employers must use the revised form with a revision date of 07/17/17N and no other versions of the form will be acceptable for newly completed Form I-9’s as of that date.
The issuance of a new form I-9 DOES NOT mean that employers must redo all previously completed Form I-9’s. As stated, this new version will be used on a going-forward-basis no later than September 18, 2017.
On November 14, 2016, the U.S. Citizenship and Immigration Services (USCIS) released the new version of the Form I-9. The Form I-9 is the form employers are required to complete for each newly hired employee in the United States to verify the employee’s identity and eligibility to work in the United States.
Employers may continue using the Form I-9 dated 03/08/2013 N only through January 21, 2017. NO LATER THAN January 22, 2017, employers MUST use the revised form (dated 11/14/2016 N) for all new hires and any employee that requires reverification of employment eligibility.
The new Form I-9 contains some revisions that should be noted:
The instructions are now a separate document containing 15 pages (including more in depth instructions for employees/employers and a list of proper abbreviations for Section 2 documents);
A field in Section 1 has been changed from “other names used” to “other last names (if any);”
Section 1 was changed for some foreign nationals to enter EITHER the Alien Registration Number/Form I-94 Number OR Foreign passport number/Country of Issuance (not both);
New Section 1 requirement for employees – employees MUST indicate whether or not they used a preparer/translator in a new field;
There is now the ability for multiple translators/preparers if such were used;
The instructions indicate there should be NO blank fields in Section 1; thus, if an employee does not complete a field in Section 1 because they are not required to or it is not applicable to them they MUST put N/A in the field;
New Section 2 requirement for employers – employers must complete a new Citizenship/Immigration Status field at the top of Section 2 where the employer needs to input the number corresponding to the employee’s citizenship/immigration status from Section 1 (i.e. #1 = citizenship);
The new instructions relating to Section 2 indicate that when a document presented by an employee does not contain a document number and/or expiration date, the employer MUST put N/A in the applicable field;
The new form is a “smart form” with enhanced dropdown features to assist in completion. However note, the new form is NOT an electronic form in compliance with Form I-9 electronic regulations. Thus, anyone completing any part of the new smart form using adobe acrobat will still need to print the form, have the employee/employer provide a handwritten signature and maintain a copy of the original Form I-9. Remember, employees must complete Section 1 and employers complete Section 2. Thus, employers may NOT pre-populate any portion of Section 1.
Employers should review their current Form I-9 policies and practices to ensure they have proper Form I-9 compliance procedures in place. Furthermore, employers should plan on how and when they will implement the new Form I-9 prior to the January 22nd deadline.