Despite ICE announcing that I-9 flexibility was extended through August 31, that doesn’t mean you shouldn’t be paying attention. Employers must care about the I-9!!
What is I-9 Flexibility?
Since the beginning of the pandemic, companies operating remotely have been able to inspect Section 2 Form I-9 documents virtually. In other word, over video link, by fax, or email. In April of this year, DHS clarified that in-person inspection applied only to employees who physically report to work at a company location on a “regular, consistent or predictable basis.” Further, employees who exclusively work remotely due to COVID-19 precautions are temporarily exempt from in-person inspection until they begin reporting to work at a company location on a “regular, consistent or predictable basis.”
Obviously, the extension through the end of August is helpful. However, there is much uncertainty surrounding when this flexibility will go away, and what the residual effects will be. As companies are returning to work, and hiring and/or bringing back furloughed employees, Form I-9 should be top of mind.
Here are some I-9 Tips:
- We all know that completing the I-9 is a critical part of your onboarding process. Therefore, address it with all employees alongside conversations about health benefits, insurance, vacation, and sick leave. Everyone needs an I-9, even if you sat next to them in kindergarten and are positive they are US citizens.
- The completion of I-9s must happen within 3 business days of the hiring.
- There is an approved list of documents an employee can submit. You cannot ask for more documents even if you have a “gut-feeling” about the person, or you really like them and want them to “pass” the I-9. Rely on the documents, not your gut, or you may cause the company to be in violation of the I-9 rules.
- Don’t skip the I-9. It is a requirement even if you do E-Verify.
- Copy supporting documents for everyone or no one. Only copying I-9 supporting documents for certain employees is a violation.
- Do not pay your employees in cash. Especially if you believe (or actually know) some of them lack authorization to work in the U.S. This is a clear violation of I-9 rules.
- Store I-9s together. This will make it easier to do an internal audit, determine which are no longer required, and collect for a business audit.
I-9s can be tricky, and although DHS has been asked to provide sufficient notice as to when flexibility will be discontinued, it is not guaranteed.
Here’s what you can do to prepare:
- Prepare a list of all employees verified virtually, when they’ll return to work in-person, and the deadline for the in-person verification.
- Assign in-person verifications. Include a process to contact affected employees.
- Provide training updating I-9 forms after the in-person review. Be sure to note “COVID-19” as the reason for the delayed in-person inspection. In the “Additional Information” field “documents physically examined” with the correct date and person’s name who conducted the review.
- Pay attention to any special rules regarding I-9s for individuals who are beneficiaries of TPS.
So employers, you need to care about the I-9. As always, let me know if you have any questions!
