Employment Verification During the COVID-19 Pandemic By AILA’s Verification & Documentation Liaison Committee (Updated on February 15, 2021)


Posted March 4, 2021 by berdklaussusa

New York, NY, Mar, 21: Based on January 27, 2021 guidance from the Department of Homeland Security (DHS),
 
New York, NY, Mar, 21: Based on January 27, 2021 guidance from the Department of Homeland Security (DHS), AILA’s Verification & Documentation Liaison Committee (“Verification Committee”) provides anupdate to this practice pointer, originally published on March 19, 2020, to provide additional information related to employment verification compliance requirements during the COVID-19 pandemic.

As a result of the continuing COVID-19 global pandemic and national emergency, employees
continue to work from home to comply with government issued stay-at-home orders and
accomplish necessary social distancing to limit the spread of the virus.

AILA sent a letter to DHS on March 16, 2020 requesting guidance and flexibility relating to
Form I-9 requirements. On March 20, 2020 DHS announced some flexibility in requirements for
I-9 compliance during the COVID-19 pandemic. Further guidance has been provided in the form
of Q&As released by USCIS on April 3, 2020 and information from USCIS relating to E-Verify
emailed on March 21, 2020. Announced flexibility has included, but is not limited to, a limited
exercise of discretion concerning the physical presence requirements for the Form I-9, the ability to accept certain Driver’s Licenses that expired in March, as well as an extension of time to respond to Notices of Inspection (NOIs) served on employers in March 2020.

Aside from the guidance noted above, U.S. Citizenship and Immigration Services’ (USCIS)
Special Situations webpage continues to state that “[a]ll requirements for Form I-9, Employment Eligibility Verification, completion and E-Verify remain in place.” It is important for AILA members to remind clients about the need for continued employment verification and counsel them on options for compliance during these challenging times.

Therefore, AILA’s Verification & Documentation Liaison Committee provides the following
FAQ document, providing responses to important questions during the COVID-19 pandemic,
especially in remote work scenarios.

1. Has DHS announced any suspension of Form I-9 or E-Verify requirements?
No. As of this date, the mandate to complete a Form I-9 (and E-Verify, if applicable) has not
been suspended. Thus, (1) all new hires must complete Section 1 of the Form I-9 on or before the first date of employment for pay, (2) the employer must complete Section 2 of the Form I-9 after reviewing original documents, and (3) the employer must complete Section 3 of the Form I-9 (or otherwise appropriately update the Form I-9) when re-verification is necessary.

Concerning the second point listed above, DHS has announced a temporary option allowing for
virtual review of Section 2 documents under certain conditions.3 However, employers would
later (within three business days after normal operations resume) have to physically review
original documents in the presence of the employee.

The Form I-9 and instructions are available at https://www.uscis.gov/i-9.

2. What are viable options for completing the Form I-9 in remote work scenarios?
Section 1:
Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire
with the Form I-9 and Form I-9 instructions to complete Section 1 on or before the date of hire.

Section 2:
Despite the challenges of remote employment, an employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment).

For remote hire situations, an authorized representative or agent of the employer may assist in completing Section 2 of the Form I-9. The representative or agent must review original
documents while in the physical presence of the person presenting them for purposes of Section 2 completion.

Under the law, Section 2 must be completed by one of two processes: an in-person meeting of the new Employee and the Company Human Resource/Administrative staff (“HR/Adm”), or an in-person meeting of the new Employee and a Company/Employer authorized
representative/agent (also known as a “Remote Hire”).

Because of the COVID- 19 pandemic, DHS is providing limited flexibility to the in-person
requirement with HR/Adm for a period of 60 days (starting March 20, 2020) by allowing
employers with employees taking physical proximity precautions due to COVID-19 to complete Section 2 remotely, via video link, fax, or email.4 Per DHS, when a company workplace is

operating remotely due to COVID-19, DHS will temporarily allow for “remote verification” and
electronic review of the document(s) presented by the employee for Section 2 purposes.
However, when advising a company about this option, it is important to fully explain the
additional requirements imposed by DHS if a company avails itself of this option, in order to
comply with the Form I-9 requirements. Even for employers desiring the flexibility of the virtual
review option, in many situations the “Remote Hire” option using an authorized representative or
agent may be the best alternative, as the virtual review option imposes additional requirements
and timing obligations. Below are three options and recommended steps:

Process 1 - In-Person New Employee & HR/Adm Document Review: HR/Adm timely review the employee’s identity and employment authorization documents in the employee’s physical presence.

Process 2 - “Remote Hire” In-Person New Employee & Employer Authorized Representative Document Review:
The “Remote Hire” process, typically used for onboarding a new remote employee, is always an option for completion of Section 2 of the Form I-9. The Remote Hire option is not restricted to only those employees based at remote locations but can be used in any situation. Under the Remote Hire option, instead of HR/Adm completing the Form I-9, an unrelated third-party – referred to as an “authorized representative” of the employer in the Form I-9 instructions – acts as the agent of the employer to review the original documents(s) in the physical presence of the employee and completes Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. In question #3 below, more information is provided concerning a family member’s ability to act as an “authorized representative” of the company during Remote Hire situations.

The agent records the document information on the Form I-9 and signs her/his name as “agent” for the employer, dating the form and filling in all form fields as appropriate. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. Many employers will designate someone to be on the phone or present via webinar to observe the Form I-9 process and confirm that the agent is acting appropriately. Because the process of verifying employment eligibility must occur in-person, instructions sent to the employee
should include current CDC guidance relating to reduction of the risk of virus transmission.

Since the employer bears the liability for any Form I-9 errors—including those committed by its authorized representative--a best practice is to provide a Remote Hire On-Boarding Instruction package for the authorized representative (and/or a real-time call with the authorized representative), and to perform a detailed review upon receipt of the completed Form I-9.

Process 3 - Limited Temporary Option: HR/Adm’s Electronic Document Review:
HR/Adm timely reviews the employee’s identity and employment authorization documents electronically, not in the employee’s physical presence, but via video link, fax, email, etc. When the document(s) are electronically reviewed/inspected, HR/Adm must also:

• Create and retain a written document that captures the remote onboarding and telework policy in place when this option is used for any Form I-9 created under this process. See question #7 below;

• Retain copies of the documents presented, as per the original guidance issued by ICE that states “employers must inspect the Section 2 documents remotely…and obtain, inspect, and retain copies of the documents….” The new hire may provide copies of the documentation via a secure file transfer link, fax, secure/encrypted e-mail, or, if necessary, HR/Adm may take a screen shot of the documentation (but only on a company issued device and not a personal device). Note that security of sensitive
personal information must be maintained, and the company should work with its information security team regarding the transmission and/or capture of personal information in these situations;

• Add “COVID-19” in the Additional Information field/box on Section 2 of the Form I9;

• Tell the employee that within 3 business days of cessation of this temporary electronic document review option, an in-person meeting and physical inspection of the document(s) will occur;
• Within 3 business days of cessation of this temporary electronic document review option, coordinate the in-person meeting and physical inspection of the document(s); and,
• Add “documents physically examined,” date and initial in Section 2 Additional Information field/box, or to Section 3 of Form I-9, as appropriate.

As noted above, this process requires the employer to “perfect” the Form I-9 with an in-person
meeting at a future date. Even if the same person reviews the documents virtually and in-person
(the ideal scenario), the practice should be -- like all changes on the form -- for the form to be
clearly annotated to show the date and identify of the person who took any action on the form.

3. In order to comply with social distancing recommendations, is it okay to use a family member already in the household as an “authorized representative” of the company when using the “Remote Hire” process?

Yes. This is especially useful in cases of self-isolation and/or quarantine, when the only person available to act as an authorized representative of the company may be a family member. While it is lawful for such individuals to act as an agent of the company for purposes of completing Section 2 of the Form I-9, special care should be taken to ensure that the form has been completed correctly and completely.
Employers should consider whether it is preferable to have a family member serve as the employer’s authorized representative or to instead complete Section 2 of the form using the Limited Temporary Option: HR/Adm’s Electronic Document Review process described above.
In all cases of remote hires where an employer relies on an authorized representative to complete Section 2, the employer should always review the Form I-9 as soon as possible after completion and take any required corrective action (clearly initialing and dating when changes are made and by whom on the face of the document). The employer is liable for any violations in connection with the form or the verification process, including when an authorized representative completes the form.
4. How long will the virtual review option last?
DHS’s March 20, 2020 announcement indicated that the virtual review option may be implemented by employers for a period of 60 days from the date of the notice or within 3 business days after the termination of the issued national emergency, whichever comes first. DHS also noted that it will continue to provide updated guidance as needed, so it is possible it will announce an extension.
DHS has extended the flexibility allowing for remote verification in certain situations several times—either in 30-day or 60-day time periods. The current extension expires March 31, 2021. Employers should monitor DHS websites, specifically Immigration and Customs Enforcement, regarding additional extensions of time granted by the agency.
5. Are all employers permitted under the DHS announcement to temporarily defer the physical presence requirement of Section 2 of the Form I-9 and use the virtual document review option?
The March 20, 2020 DHS announcement states in the opening paragraph, “Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence.”
DHS instructs later that, “This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.”
Because of the differing guidance that DHS has provided on what it believes “operating remotely” means, the most conservative and restrictive application of DHS’s guidance is for employers to avail themselves of the virtual review option only if they have zero employees at any worksite and are operating completely remotely. The reality for many employers though during this pandemic is that they may be “operating remotely” with the exception of a few essential onsite employees.
In cases where there are limited essential employees on site, the Verification Committee recommends that members work with employers to consider how the remote verification guidance may apply to them, document their physical proximity precautions, continue to make reasonable decisions during this crisis that are focused on both employee health and safety, and create and retain a related file memorandum reflecting same. Just as having a portion of its workforce working remotely at a given time under normal circumstances does not mean that an employer is “operating remotely,” having a few essential employees at a worksite or workplace (for example security or custodial personnel) where an employer is otherwise “operating remotely” should not necessarily preclude employers from choosing this option where the totality of the situation may make temporary virtual review the safer option and more likely to result in “clean” I-9s being created during these extraordinary time. Documentation of the precautions taken by an employer to ensure proper social distancing and/or comply with government orders to stay-at-home will be critical in the future to support reliance on virtual documentation, particularly if the company is the subject of a DHS investigation regarding its compliance with the Form I-9 requirements.

6. If the employer normally uses an electronic I-9 system, how should remote I-9s be handled?
First, it is important to remind your clients that the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents. An electronically completed Form I-9 may still be deficient if the supporting documents presented in Section 2 were not properly inspected (i.e., physically inspected).
An employer that uses an electronic system may still elect to create paper Forms I-9 for certain remote hires if the electronic system cannot be accessed remotely from home worksites.
An employer that creates a paper I-9 but otherwise uses an electronic system should maintain that original paper I-9 record and flag its existence for future retrieval. If the employer wants to maintain the I-9 electronically going forward, it must comply with the applicable regulations for electronic I-9 retention. ICE HSI confirmed this during AILA’s Spring 2020 Conference in Washington, D.C.
Employers opting to take advantage of the virtual document review option must ensure that their electronic I-9 systems permit the required COVID 19 annotations. If a system does not, an employer may still print the electronic I-9 and write the required COVID 19 annotations manually, initial and date next to each and maintain the separate duplicate “original” I-9 as it would a paper I-9, providing both to ICE as original I-9s in the context of a future inspection.
7. What should employers include in the recommended additional written documentation for forms created during this period?
DHS’s March 20, 2020 announcement regarding virtual document review directs that, “Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.”
Employers should create and retain a file memo to any Form I-9, print or electronic, that is created during this period explaining any deviation from the employer’s normal Form I-9 creation and retention practices. The memo should articulate and confirm the employer’s commitment to compliance with the employment verification requirements under the Immigration Reform and Control Act, describe the situation (attaching government advisories or other third-party documents such as, for example, the 3/13/20 Presidential Proclamation of National Emergency and the March 20, 2020 DHS announcement regarding flexibility in requirements related to Form I-9 compliance if the employer avails itself of the virtual review flexibility), who was affected, what steps were taken, and where relevant documentation can be found. Employers may create a universal memo that covers Forms I-9 created during this period or may attach an individual memo to each Form I-9.
Employers may also create a virtual COVID-19 Form I-9 process policy. The policy would be provided to any employee using the virtual I-9 process and address the form completion process and remote onboarding and telework policies in place for any Form I-9 created using the virtual I-9 process.
It is imperative that any written documentation be retained in a manner that allows the employer to relate it to all affected Form I-9s so that if there is a future DHS inspection, the documentation is part of and would therefore be produced with each affected Forms I-9.
In response to whether ICE will apply any leniency in the context of I-9 creation relating to COVID-19, HSI confirmed during AILA’s Spring 2020 Conference in Washington, D.C. that it would consider the totality of the circumstances if inspecting Forms I-9 created during this period in a future audit. During the November 2019 liaison meeting with ICE HSI and DOJ’s Immigration and Employee Rights Division, ICE HSI further confirmed that in any emergency situation, employers should prepare a memorandum to reflect the circumstances so that ICE HSI can evaluate the circumstances in the event of an inspection or other investigation.
8. Does suspension of employer operations impact the employment verification requirements?
Yes, if a business is closed (operations are fully suspended), then the Form I-9 requirements are tolled because a day when the business is not operating is not considered a “business day” for Form I-9 purposes. Again, the employer should explain any deviation from normal business operations in an attachment to the Form I-9 if it would otherwise appear that the form was not timely completed or updated. Note that this only applies where operations are fully suspended; where the business is operating through remote/work-from-home arrangements, the business is not “closed,” even if normal business locations/offices are closed.
9. What if employers normally keep copies of Section 2 and 3 documents?
If an employer uses an authorized representative to complete the Form I-9 for a remote employee, the individual should be instructed to make copies of the documentation presented by the employee and provide same to the employer.
Employers reviewing documents virtually must keep copies of the documents reviewed when completing Section 2. The new hire may provide copies of the documentation via a secure file transfer link, fax, secure/encrypted e-mail, or, if necessary, HR/Adm may take a screen shot of the documentation (but only on a company issued device and not a personal device). Note that security of sensitive personal information must be maintained and the company should work with its information security team regarding the transmission and/or capture of personal information in these situations.
10. What if an employee presents a document from the Lists of Acceptable Documents that is expired but cannot be renewed because of closures of government offices, such as Department of Motor Vehicles?
On April 3, 2020, USCIS provided Q&As, announcing a limited exception to the requirement that all documents presented for I-9 purposes must be valid at the time of completion of Form I9. If a driver’s license has expired on March 1, 2020 or later AND the state has announced an auto extension of expiring driver’s licenses, then the expired document can be an acceptable List B document.
On May 1, 2020, USCIS issued additional guidance related to List B identity documents that could not be renewed due to COVID-19 related closures of government offices. In addition to auto extension situations described above, USCIS allowed for any List B document set to expire on or after March 1, 2020—and which had not been extended by the issuing authority—to nonetheless be an acceptable List B document. Meaning that in certain circumstances an employer could accept an expired driver’s license or state ID card and treat it similar to the receipt rule for Form I-9 purposes. Under this temporary policy, the expired List B document could be valid for more than 90 days. In this scenario, an employer has an obligation to follow up with the employee within 90 days after termination of this policy by DHS, at which time the employee must present a valid unexpired document to replace the expired document presented when they were initially hired. Noteworthy is that it does not need to be the replacement for the expired document. It can be any List B document.
In both situations, whether an auto extension was granted by the issuing authority or not, there are specific steps that must be followed per USCIS guidance. This include making the Section 2 Additional Information field/box accordingly. The guidance can be found on USCIS’ website, COVID-19 Temporary Policy for List B Identity Documents.
11. Are employers enrolled in E-Verify still required to use E-Verify?
Yes, just as employers are still required to complete Section 2 of Form I-9 within three days of the date of hire, employers are still required to create E-Verify cases during this same time period. However, on March 21, 2020 USCIS announced some new temporary policies.
As a result of Social Security Administration (SSA) office closures, USCIS announced that it is extending the timeframe to take action to resolve Tentative Nonconfirmations (TNCs). E-Verify is also extending the timeframe to take action to resolve DHS TNCs when an employee cannot resolve a TNC as a result of office closures. Employers must still notify employees about their TNC results as soon as possible.
USCIS instructed that if an E-Verify case creation is delayed as a result of COVID-19 precautions, an employer should select “Other” from the drop-down list for the reason for delay and enter “COVID-19” as the reason. DHS also noted that 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. According to USCIS, the EVerify Contact Center representatives remain available during the pandemic to answer related questions.
12. How can employers ensure that they provide clear communication throughout the COVID-19 pandemic?
During this time, a file memo helps create a record for future possible enforcement action. Employers should also clearly communicate to employees the steps it is taking in response to the pandemic and any related changes in procedures. This will help to mitigate risk of any discrimination-related claims or enforcement. Generally, employers taking actions that are based on valid and legitimate business and compliance-related reasons (e.g., asking for Form I-9 documents again to make copies if the documents were initially presented virtually as allowed by DHS guidance) and not unlawful reasons (e.g., national origin or citizenship discrimination) are not likely to run afoul of the anti-discrimination provisions of the Immigration and Nationality Act (INA) that apply to the hiring process (8 U.S.C. § 1324b).
13. What can employers do to avoid unlawful discrimination or violation of data privacy laws?
Employers must take care to not prescribe which document(s) should be presented by the employee when completing the Form I-9, to avoid violation of the anti-discrimination provisions found in 8 U.S.C. § 1324b. The employee must choose which documents to present for verification or re-verification purposes in Sections 2 and 3, respectively. Employers should always provide a copy of the Lists of Acceptable Documents attached to the Form I-9 and should continue to do so during this period.
Care should also be taken in how the Form I-9 (and copies of documents, if applicable) completed either through remote verification or by an authorized representative are captured, stored and transmitted to the employer. Form I-9s contain personally identifiable information (PII), making them prime candidates for a data breach if not handled properly. Any potential loss or unauthorized access to or disclosure of Forms I-9 should be reported immediately to the company’s information security team to determine application of state data breach laws.
14. Did the new Form I-9 version take effect on May 1, 2020?
Yes. USCIS did not delay implementation of the new version of the Form I-9. AILA members should remind clients that they must use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020. The new and most recent version are very similar, and the need to starting using the new version could be easily overlooked during this chaotic period.
15. Has USCIS or ICE issued any additional guidance on completing Form I-9 under the Temporary COVID-19 Policies
On July 27, 2020, USCIS posted examples showing how DHS recommends employers notate Form I-9 when remotely inspecting employment authorization and identity documents and then subsequently performing the required physical inspection once normal operations resume.6 ICE has not provided additional specific illustrations or guidance on what would be acceptable in the context of a future I-9 inspection.
16. The situation is constantly in flux. Does the Verification Committee have any final thoughts?
Employers should prioritize taking actions it deems in employees’ best interest in these challenging times. Form I-9 compliance will not allow for a “one size fits all” solution during this period. AILA members should work with their clients to create an action plan that balances the competing factors and document the same so it’s clear any actions were taken out of both caution and compliance during this global pandemic.
It is important for employers to maintain open and honest communication with their attorneys and employees to avoid any misunderstandings during these challenging times. Particularly, as many companies have been operating remotely, at least to some extent for over 6 months, we recommend that employers revisit their COVID-19 I-9 compliance plans if they are using the temporary protocols and discussing how they will accomplish completion of in-person review of Section 3 in the future. Depending on the number of new hires, this may be a large undertaking. For additional information see AILA Doc. No. 21022231.

About the company:
Berd & Klauss, PLLC an immigration law firm in New York, that specializes in immigration & immigration-related issues and handles everything from immigrant visas to deportation and waivers.
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Last Updated March 4, 2021