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FAQs For Employers Navigating Relaxed I-9 Verification Requirements

April 28 - Posted at 10:00 AM Tagged: , , , , ,

Although the Department of Homeland Security (DHS) recently relaxed I-9 requirements for employers operating remotely as a result of the COVID-19 crisis, employers are still left with some questions on how to meet their obligations in this uncertain time. 

The Basics: What Are The New Rules?

Under federal guidance, employers are temporarily no longer be required to review an employee’s identity and work authorization documents in the employee’s physical presence.  Instead, inspection of these documents can be conducted remotely (e.g., by video, fax, or email).  

According to the U.S. Citizenship and Immigration Services (USCIS), “if employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.”

Then, when “normal operations resume,” all employees whose documents were presented via remote verification must, within three business days, undergo the required “in-person” examination of documents. The person conducting the physical examination should write the words “documents physically examined” in the Additional Information box in Section 2, and should include their name and the date of inspection.  

It is important to keep in mind that the DHS’s relaxed requirements apply only to employers who are operating remotely. According to the guidance, if there are employees physically present at a work location, then you must follow the normal in-person physical inspection rules. However, if newly hired employees or existing employees of an employer who still has employees present at a work location are subject to COVID-19 quarantine or lockdown protocols, “DHS will evaluate this on a case-by-case basis.”

Frequently Asked Questions About The New I-9 Guidance

While employers appreciate the DHS’s temporary relaxation of the in-person document inspection rules, some questions are not addressed by either DHS or USCIS. Here are the most common questions we have seen and the best practices to follow.

  1. How is an employee expected to fill out Section 1?
    The announcement makes clear that employees are still required to fill out their section (Section 1) of the I-9 no later than the first day of employment. But DHS’s announcement is silent on how employees will complete Section 1 of the I-9 if they are operating remotely.

    You can presumably email the Form I-9 to the employee, have the employee complete Section 1, sign, date, scan and email the completed Section 1 back to you. For employees without a home printer and/or scanner, you should consider having them provide Section 1 in the same way they provided their documents (by video, smart phone photo, fax or other electronic method).

    Once operations resume, the employee should bring the original signed Section 1 to your worksite.

  2. If we have a policy of not keeping copies of documents presented as part of the I-9 process, what should we do with our copies of the remotely provided documents after the in-person inspection occurs?
    As noted, the announcement clearly requires employers conducting remote document reviews to keep copies of the documents provided to them (for example, by taking screen shots, pictures of the documents by camera phone, and other methods). But the announcement is silent as to what you should do with those electronic copies of documents after the in-person document review, in the event you do not, as a policy, keep copies of documents submitted as part of the I-9 process.

    The safest course of action is to print out the electronic copies of documents received remotely. But instead of keeping them with the employee’s I-9, keep them in a separate file until DHS clarifies what should be done with them.

  3. Is the employee required to bring in hard copies of the same documents they provided remotely?
    The government has made it clear that you are not supposed to request or even suggest that employees provide any specific document or documents when filling out a Form I-9. Here, the announcement seems to assume employees will bring in for inspection the same document or documents they provided remotely, but does not specifically say so. 

    Because the employee has already made their choice of documents when they provided them remotely, DHS may find it reasonable for you to ask to see hard copies of the same document(s). If the employee refuses or has lost one or more of those document(s), you may consider filling out a new Section 2 and attaching it to the original Section 2, with a brief explanation in the Additional Information field.

  4. What triggers the determination that “normal operations” have resumed?
    The announcement states that within three business days after you resume “normal operations,” the in-person document review must occur. But what if you implement a partial resumption of operations, scaled back operations, or even just start a test run of operations?  What if you call some of your employees in to your worksite in preparation for returning to normal operations? 

    The recommended approach is to determine if the employee is going to be required to physically come into the office as part of the resumption of operations, whether to attend orientation, pre-employment training, or other reason. If the employee is scheduled to come in to the workplace for only a day or two, or even for only a few hours, you should instruct them to bring their original I-9 document(s) with them, and you should conduct the in-person inspection at that time. 

    In short, rather than bank on an argument that Section 2 was not filled out late because “normal operations” had not yet commenced, you should err on the side of doing the document inspection as early in the process as possible (on a case-by case basis), rather than later.

New I-9 for 2020

February 03 - Posted at 2:23 PM Tagged: ,

On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification, that the Office of Management and Budget approved on Oct. 21, 2019. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020.

The notice provides employers additional time to make necessary updates and adjust their business processes. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.

USCIS made the following changes to the form and its instructions:

Form:

Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North per those countries’ recent name changes. (Note: This change is only visible when completing the fillable Form I-9 on a computer.)

Instructions:

  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided clarifications on acceptable documents for Form I-9
  • Updated the process for requesting paper Forms I-9
  • Updated the DHS Privacy Notice

A revised Spanish version of Form I-9 with a version date of 10/21/2019 is available for use in Puerto Rico only.

 

E-Verify Is Back Up, Expect Processing Delays

January 29 - Posted at 2:35 PM Tagged: , , ,

Employers that participate in E-Verify, the government’s electronic employment eligibility verification program, have until Feb. 11 to create and enter cases into the system for all hires made during the 35-day partial government shutdown.

U.S. Citizenship and Immigration Services (USCIS), which manages the program, announced that E-Verify has resumed operations, but patience will be required from users as the service is restored.

“Expect delays due to the sheer volume of past E-Verify cases that need to be created, in addition to the fact that employers continue to hire every day and that adds to the queue of cases being created,” said Montserrat Miller, a partner in the Atlanta office of Arnall Golden Gregory. “Employers, you only have a little over two weeks to bring yourself into compliance with the E-Verify requirements given the Feb. 11, 2019 deadline.”

Miller reminded HR professionals that “a case needs to be created for all employees you hired for whom a Form I-9 was completed but you could not create a case in E-Verify because the system was offline due to the shutdown.”

USCIS instructed that employers use the hire date from the employee’s Form I-9 when creating an E-Verify case. If the case creation date is more than three days following the worker’s start date, select “Other” from the drop-down list asking for an explanation and enter “E-Verify Not Available” as the reason.

“Any pending tentative nonconfirmation (TNC) that you and/or your newly hired employee were not able to resolve due to the shutdown needs to be resolved at this time,” Miller said.

If an employee has received a TNC and notified HR of his or her intention to contest it by Feb. 11, employers must add 10 federal business days to the date on the worker’s “Referral Date Confirmation” notice. That’s the date by which the employee must contact the Social Security Administration or Department of Homeland Security to begin resolving the TNC.

Federal business days are Monday through Friday and do not include federal holidays.

There’s no need to add days to the referral date for TNC cases after E-Verify resumed operations. “If your employee decided to contest the TNC when E-Verify was unavailable, you should now refer the employee’s case and follow the TNC process,” Miller said.

Federal contractors should contact their contracting officer for more information about the impact of the government shutdown on their operations related to E-Verify.

E-Verify to Go Dark This Weekend

March 20 - Posted at 6:30 PM Tagged: , , , , , ,

The federal government’s electronic employment verification system will be unavailable this weekend due to system upgrades.

U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be shut down from midnight March 23 to 8 a.m. March 26 Eastern Time. E-Verify users are encouraged to complete and close any open cases prior to the system shutdown.

The Department of Homeland Security and the Social Security Administration will not be able to assist employees with case resolution issues during the outage. myE-Verify, the system’s resource portal for workers, will also be unavailable.

“During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify tentative nonconfirmations,” said Michael H. Neifach, an attorney in the Wahington, D.C., regional office of Jackson Lewis. “The E-Verify outage does not change any Form I-9 requirements,” he added. “Form I-9s must be completed no later than three business days after employment.”

To minimize the shutdown’s impact, the agency stipulated:

  • The three-day rule for creating E-Verify cases is suspended for cases affected by the outage. If an employee’s first day occurs between March 20 and March 26, employers will have until March 29 to create an E-Verify case.
  • Workers will have two additional federal working days to resolve tentative nonconfirmations.
  • Workers will have an additional two federal working days from the date listed on their referral date confirmation to contact the agencies.
  • Employers may not take adverse action against an employee because the E-Verify case is in interim case status or during the extended interim case status due to the suspension. Federal contractors with E-Verify clauses should contact their contracting officer to inquire about extending contractor deadlines.

USCIS is prepping for a move to an upgraded user interface later this month. Enhanced features are expected to include a streamlined process for creating and managing cases, modernized data-matching to reduce tentative nonconfirmations, and improved data integrity.

USCIS Releases New I-9 Form

July 18 - Posted at 9:39 AM Tagged: , , ,
On July 17, 2017, the USCIS announced the release of a revised version of Form I-9, Employment Eligibility Verification.

Key information:
  • The revised version may be used immediately, but it must be used no later than September 18, 2017.
  • Employers can continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017, however we recommend that you destroy any existing versions and begin using the new version immediately.
  • Employers must continue following existing storage and retention rules for any previously completed Form I-9.

The changes below also can be found in the newly revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Revisions to the Form I-9 instructions:
  • The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been changed. Its new name is Immigrant and Employee Rights Section (IER).
  • The instructions on Section 2 have been slightly changed to read: “Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee’s first day of employment.”
Revisions related to the List of Acceptable Documents on Form I-9:
  • The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.
  • The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.

If you have any questions about the new form or would like us to send you a copy of the new I-9 form and instructions, please contact our office.

New  Version of I-9 Form Released

November 18 - Posted at 8:43 PM Tagged: , , ,

U.S. Citizenship and Immigration Services (USCIS) has released an updated version of the Form I-9, Employment Eligibility Verification. The new Form I-9, dated 11/14/2016N, will become mandatory on Jan. 22, 2017, replacing the version dated 03/08/2013 N, which may continue to be used until Jan. 21, 2017.  


The new Form I-9, which must be used for all newly hired employees and those who require the re-verification of their U.S. employment eligibility, contains a number of new features, including but not limited to:


1) Clarification of the “other names used” field in Section to request only “other last names used” and the numbering of immigration status categories in Section 1;


2) Additional details regarding the preparer/translator category, including the ability to select multiple preparers/translators;


3) A designated area to enter additional information that previously needed to be entered as a margin note, such as the auto-extension of an individual’s work-authorized status, where applicable;


4) A separate page (Page 3) for Section 3 of the Form I-9;


5) Additional prompts and electronic enhancements, such as drop-down lists and calendars, to facilitate the proper entry of required information.

Expired Form I-9 Still in Effect

April 04 - Posted at 1:35 PM Tagged: , , ,

The current version of the Form I-9, the most fundamental tool used to determine if applicants are eligible to work in the U.S., expired on March 31. Until further notice, though, employers should keep using the expired form until the recently proposed “smart” I-9 is in effect, according to U.S. Citizenship and Immigration Services (USCIS).


Dave Basham, a senior analyst in the verification division at USCIS, has been answering the following question a lot recently: “What will happen on March 31, 2016, when the Form I-9 expires?” Basham says: “Employers should continue to use the current version of the form as it continues to be effective even after the OMB [Office of Management and Budget] control number expiration date March 31, 2016, has passed.”


On March 28, 2016, USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment. Once the comment period ends April 27 and comments are considered, USCIS may make further changes before sending the proposal to OMB, which will need to review and approve it. The form will be available for download at www.uscis.gov upon being approved.


“Employers must continue to use the current version of Form I-9 until the proposed version is approved and posted on the USCIS website,” said Amy Peck, an immigration attorney in the Omaha, Neb., office of Jackson Lewis.


The proposed, revised form is designed to address frequent points of confusion that arise for both employees and employers.


The proposed changes specifically aim to help employers reduce technical errors for which they may be fined, and include:

  • Validations on certain fields to ensure information is entered correctly. The form will validate the correct number of digits for a Social Security number or an expiration date on an identity document, for example, Fay said.
  • Additional spaces to enter multiple preparers and translators.
  • Drop-down lists and calendars.
  • Embedded instructions for completing each field.
  • Buttons that will allow users to access the instructions electronically, print the form and clear the form to start over.
  • A dedicated area to enter additional information that employers are currently required to notate in the margins of the form.
  • A quick-response matrix barcode, or QR code, that generates once the form is printed that can be used to streamline audit processes.
  • The requirement that workers provide only other last names used in Section 1, rather than all other names used.
  • The removal of the requirement that immigrants authorized to work provide both their Form I-94 number and foreign passport information in Section 1.
  • Separating instructions from the form. Employers are still required to present the instructions to the employee completing the form, however.
  • The addition of a supplement in cases where more than one preparer or translator is used to complete Section 1.


The proposed changes will have far-reaching impact because all employers are required to complete and maintain the Form I-9 for each employee hired to verify their identity and authorization to work in the United States.

New I-9 Form Released

March 08 - Posted at 8:08 PM Tagged: , , , , , ,

The official revised Employment Eligibility Verification Form I-9 was released March 8, 2013 by the U.S. Citizenship and Immigration Services (USCIS).

 

Employers should begin using this new form immediately. The new Form I-9 will contain a revision date of 03/08/13 that is located on the bottom left-hand corner of the form.

 

Final Changes to the Form I-9

 

The revised Form I-9 makes several improvements designed to minimize completion errors. The key revisions to Form I-9 include:

 

  • Adding data fields, including the employee’s foreign passport information (if applicable) and telephone and e-mail addresses.

     

  • Improving the form’s instructions.

     

  • Revising the layout of the form, and expanding the form from one to two pages (not including the form instructions and the List of Acceptable Documents).

 

60-Day Grace Period

 

Prior versions of the I-9 will no longer be accepted and should not be used after May 7, 2013. The agency is providing employers 60 days to make the necessary internal changes in their business processes to implement the new form.

 

The new I-9 form can be downloaded here.

 

A Spanish-language version of the new Form I-9 is available, however may only be filled out by employers and employees in Puerto Rico only.

 

Handbook for Employer

 

The M-274 Handbook for Employers is in the process of being updated as well. Employers are advised by USCIS to follow instructions on the new Form I-9 until the revised handbook has been updated.

 

Employers are required to maintain an I-9 for as long as an individual is employed and for the required retention period following their employment termination, which is the later of three years after the date of hire or one year after the date employment ended.

 

Failure of an employer to ensure proper I-9 completion and retention may subject the employer to civil monetary penalties, and possibly even criminal penalties.

 

USCIS noted that employers do not need to complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless reverification applies.

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