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Due to ongoing COVID-19 concerns, employers will have the flexibility to remotely review employment documents for I-9 purposes in some circumstances until July 2023 — and they should keep using the current Form I-9 even though it was set to expire at the end of the month, according to two important announcements this week from the Department of Homeland Security (DHS). Here’s what you should know as we wait for additional DHS guidelines and prepare for anticipated changes.
Keep Using the Current Form I-9 — But Stay Tuned for Further Guidance
DHS notified employers that they should continue to use the current I-9 — which has an expiration date of October 31, 2022 — until further notice. So, stay tuned for additional information, as we will provide an update when DHS publishes its new Form I-9, associated instructions, and effective date.
Timely compliance will be critical, since failing to use the current version of Form I-9 can result in administrative penalties. You should be prepared to take immediate action and discard the current version when the new one goes into effect.
Relaxed Document Inspection Rules Remain in Play in Limited Circumstances
Due to continued safety precautions related to COVID-19, DHS announced that it will extend its updated I-9 flexibilities until July 31, 2023. Since early on in the COVID-19 pandemic, USCIS has allowed employers to remotely review — by Zoom, video chat, FaceTime, fax, or other electronic means — the identity and work-authorization documents that are necessary to complete employees’ I-9 forms during the hiring and reverification process. These “relaxed” rules have applied in the following situations:
Under these rules, employers must eventually inspect the relevant documents in person, but only if an employee stops working remotely and begins to report to the employer’s physical location on a regular, consistent, or predictable basis.
A Sign of Changes to Come?
This extension of the relaxed rules aligns with recent DHS efforts to kickstart the rulemaking process for a permanent protocol on remote document review. The latest extension of the relaxed document review rules is seen by some as more proof that DHS is dedicated to creating a permanent remote document examination rule. If implemented, the rule would allow employers to hire workers in far-flung locations, inspect their documents remotely, and eliminate the current requirement of in-person review by a company employee or authorized representative.
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.
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.”
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.
The federal government’s Form I-9, used by HR departments across the country to verify workers’ employment eligibility, is expiring at the end of this month.
The Department of Homeland Security (DHS) is expected to extend the current version of the form (marked 8/31/2019) without changes, although minor clarifications will be made to the form’s instructions. The agency has directed employers to continue using the current version of the form despite the expiration date until a revised version is available.
Here are three of the proposed revisions:
After months of negotiations, landmark legislation was unveiled that proposed substantial changes to the U.S. immigration laws.
The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (filed April 16, 2013) lays out a 13-year path to citizenship for most of the 11 million people living in the U.S. illegally, allocates billions of dollars to be spent on border security, creates new legal guest worker programs for low-income jobs and farm labor, mandates the use of E-Verify for most companies hiring new workers and expands overall immigration to the U.S. by 50% in the next 10 years.
The bill proposes ways to clear up green card backlogs, raises the cap for H-1B workers and creates a new “W-visa” program for lower skilled workers.
Aspects of the bill that would impact the workplace include the following:
All employers would be required to use the E-Verify electronic employment verification system, phased in over a 5 year period. Large employers with more than 5000 employees would be phased in within two years.
Every non-citizen would be required to carry a “biometric work authorization card”.
Enhancements to the E-Verify system would include a photo-matching tool and the capability for employees to “lock” their Social Security numbers in the system to prevent others from using them. In order for the non-citizen to be cleared for a job, the picture on the card presented by the employee to the employer will have to match the identical picture the employer has in the E-Verify system. Employers would be required to certify that the photograph presented in person matches the photograph in the system.
The bill addresses what’s been one of the biggest programs with the current system. Beyond employment- based visas, the bill would create an entirely new category of “merit-based” visas. A merit-based visa, created in the fifth year after the bill becomes law, would award points to individuals based on their education, employment, length of residence in the U.S., and other considerations. Individuals with the most points would earn one of the 120,000 visas that will be available per year. The number would increase by 5% annually if demand exceeds supply in any year where unemployment is less than 8.5%.A maximum cap of 250,000 merit-based visas is proposed.
Under this system, the DHS would allocate merit-based immigrant visas beginning Oct. 1, 2014, for employment-based visas that have been pending for 3 years, family based petitions that were filed prior to enactment and have been pending for 5 years, and to long term immigrant workers who have been lawfully present in the country for more than 10 years. It is this category that those who are in the country illegally now would be funneled into after a decade as legalized residents.
Currently, only about 14% of green cards granted are employment based. That percentage could increase to as high as 50% under this proposal. The bill also emphasizes the need to shift immigration resources toward high-skilled immigrants. It creates a start up visa for foreign entrepreneurs who seek to emigrate to the U.S. to launch their own companies.
The bill exempts the following categories from the annual numerical limits on employment-based immigrants: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in science, technology, engineering, and mathematics (STEM) fields; and physicians who have completed the foreign residency requirements or have received a waiver.
The bill also redistributes 40% of the worldwide level of employment-based visas to high skilled workers and those who have earned a master’s degree or higher in STEM fields from an accredited U.S. institution. The bill increases the percentage of employment visas for skilled workers and other professionals to 40%, maintains the percentage of employment visas for certain special immigrants to 10% and maintains visas for those who foster employment creation to 10%.
Married children over 30 years of age and siblings of U.S. citizens would no longer be eligible for a family preference in the visa application process and the bill would eliminate the 55,000 Diversity Visa Program recipients awarded by lottery each year that go largely to immigrants from Africa and Eastern Europe.
Those who were or are selected for diversity immigrant visas for fiscal years 2013 or 2014 would still receive their visas.
The plan calls for a sizable increase in high-skilled visas, fees for employers that hire large numbers of foreign workers, and institutes a ban on those companies applying for additional H-1B visas in the future.
The legislation would increase the current number of H-1B visas from 65,000 to 110,000. The current 20,000 visa exemption for U.S. advanced degree holders would be amended to a 25,000 visa exemption for advance degree graduates in science, technology, engineering, and mathematics from U.S. schools.
Provisions designed to keep high-skilled hiring from hurting U.S. tech workers include “H-1B dependent employers” paying significantly higher wages and fees than normal users of the program and prohibiting companies whose U.S. workforce largely consists of foreign guest workers from obtaining additional H-1B and L visas. In 2014, companies will be banned from bringing in any additional workers if more than 75% of their workers are H-1B or L-1 employees.
New Visa on the Block
The bill creates a new visa for lower-skilled workers in the service sector, construction and agriculture. The program begins April 1, 2015 and would be initially capped at 20,000 and would rise to 75,000 by 2019.
The spouse and minor children of the W visa holder will be allowed to accompany or follow to join and will be given work authorization for the same period of admission as the principle visa holder.
Immigrants would apply at the U.S. embassies and consulates in their home countries and the visa would be valid for 3 years. If visa holders are unemployed for 60 days or more, they would be required to leave the United States. The workers must be paid the prevailing wage and cannot be employed in areas where unemployment is above 8.5%. Employers cannot fire American workers 90 days before or after the hiring of guest workers.
Agriculture Program Revised
A new agricultural guest worker visa program would also be established. A portable, at-will employment based visa (W-3 visa) and a contract based visa (W-2 visa) would replace the current H-2A program.
As many as 337,000 new three-year visas would be available for farm workers. After five years, an annual visa limit based on market conditions would be set.
The bill would allow current undocumented farm workers to obtain expedited legal status. Undocumented farm workers who “have made a substantial prior commitment to agricultural work in the U.S.,” show that they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine would be eligible to adjust to legal permanent resident status.
Spouses and minor children would receive derivative status.
Hearings have been scheduled before the Senate Judiciary Committee to review the bill and a committee vote is expected in May. The bill would then go on to the full Senate.