In response to the COVID-19 pandemic, Department of Homeland Security (DHS) has implemented several changes to the Form I-9 and E-Verify programs to alleviate concerns and burdens for employers.
Form I-9 Policies
As employers are likely aware, Form I-9, which provides verification of work authorization for employees, possesses the requirement that the employer be in the physical presence of the employee and their original documents when completing the form.
In the wake of COVID-19 and the increasing need for social distancing, U.S. Immigration and Customs Enforcement (ICE) has announced that DHS will temporarily defer the requirement for in-person document review, provided the employers comply with certain practices. These practices include remote inspection, copying and notation on the form in Section 2 or Section 3, if re-verifying employment. The process must be run within three (3) business days of the date of hire.
Within three (3) business days after normal operations resume, employers will be obligated to physically inspect the original documents; and enter the date of inspection and “Documents Physically Inspected” in the Section 2 Additional Information field (or Section 3 for re-verification).
These provisions are in effect until the sooner of sixty (60) days from the date of the notice (May 19, 2020) or three (3) days after the national emergency is terminated.
It is important to note that these changed practices only apply to employers who have instituted “physical proximity precautions” due to COVID-19 and the employer must maintain written documentation accordingly. If newly hired employees or existing employees are subject to COVID-19 quarantine or lock down protocols, DHS will evaluate this on a case-by-case basis.
The E-Verify program remains operational and Employers may still access their accounts to enroll in E-Verify, create cases, modify user accounts, reset passwords, and other routine activities, such as report generation.
In addition, employers are still required to create cases for their new hires within three 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.
Further, E-Verify is extending the time frame to take action to resolve Social Security Administration (SSA) Tentative Non-confirmations (TNCs) due to SSA office closures to the public.
E-Verify is also extending the time frame to take action to resolve DHS TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.
The action taken by the agency provides much needed relief for employers during these uncertain times. If you require assistance navigating the E-Verify Program or Form I-9 compliance, please contact Elizabeth Coonan and/or Caitlin Klingenberg.
For updates on COVID-19 and new guidance provided by BrownWinick attorneys, please visit our COVID-19 Resource Page.