Tag Archive for: I-9

USCIS announces new remote I-9 process

During the Covid-era, USCIS was permitting — for the safety of human resources professionals and all individuals involved — I-9’s to be done remotely. That remote process expired with all employers being required to go back and inspect originals of all previously remotely-inspected documents by August 30, 2023. However, the process proved itself so effective that, as a practical matter, USCIS decided to make available and has announced a new remote process that is available to some but not all employers. It is only available under strict procedures dictated by the USCIS. See also the e-Verify instructions for doing this.

For example, and without summarizing all of the procedures:

  • Only employers who participate in e-Verify may use this remote I-9 process. Companies that do not participate in e-Verify may not use this remote process; they must return to live in-person I-9 inspections.
  • Employer who e-Verify and who choose to do remote verifications must then meet all the new requirements. For example,
    • They must use the new I-9 form because it will have to check the box on the new form confirming it used this new “alternative procedure.”
    • They must do the remote inspection by video, live. The employer must, on the video, have the person show them their original I-9 document, confirm it matches what the person previously submitted by email or otherwise, confirm its apparent genuineness, etc.
    • They must then complete the new I-9 form and retain the documents, all as dictated by the government’s requirements.

The government has said it is making available a video tutorial for employers, available to e-Verify companies. Any employer wishing to use this new process should consider watching the government’s tutorial video.

DHS and ICE remind employers to manually inspect, by August 30, 2023, all I-9 documents accepted remotely during pandemic

During the pandemic, DHS and ICE permitted employers to inspect documents remotely to comply with work-from-home COVID-19 precautions. Now that the pandemic is expiring, DHS and ICE are reminding that is no longer an option and actual inspection of such records will now be required. Specifically, DHS and ICE announced that employers will “have until Aug. 30, 2023, to perform all required physical examination of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities.”

Pandemic-era I-9 List B expansion ending 5-1-2022

Effective 5/1/2022, the DHS will end its temporary pandemic-era program that allows employers to accept expired List B documents (such as drivers licenses). During the pandemic, DHS recognized that many issuers of the List B documents (such as state motor vehicle departments ) were being overwhelmed by employee absences related to COVID-19. As a result, DHS permitted employers temmporary leeway to accept expired List B documents between 5/1/2020 and 4/30/2022. That program will end 4/30/2022, so effective 5/1/2022, companies will no longer be able to accept expired List B documents.

What does that mean for employees hired under this temporary rule during the pandemic (between 5/1/2020-4/30/2022)? In other words, if a company accepted the expired List B document during that period and is still employing the person, should the company now ask for an unexpired document? Can the company do that? What if the employee is no longer working for the company? On its webpage related to this change, DHS explains the flowchart for companies now, as follows:

Starting May 1, 2022, employers must only accept unexpired List B documents.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022. See table below for update requirements.

If the employee’s Form I-9 was completed between May 1, 2020 and April 30, 2022 with an expired List B document and that document expired on or after March 1, 2020, and the employee: Then:
Is still employed.
  • Have the employee provide an unexpired document that establishes identity. Employees may present the renewed List B document, a different List B document or a document from List A.
  • In the “Additional Information” field of Section 2, the employer enters the document:
    • Title;
    • Issuing authority;
    • Number; and
    • Expiration date.
  • The employer initials and dates the change. See example.
Is no longer employed. No action is required.
The List B document was auto extended by the issuing authority, so it was unexpired when presented. No action is required because the document was unexpired when presented.


DOL relaxes normal I-9 processes for businesses affected by coronavirus-absences/teleworking

Normally an employer must review actual physical documents to complete a new hire’s I-9. SHRM has published this article explaining the DOL’s announcement that, for businesses where that is impossible because workers are absent and/or teleworking, that requirement will be relaxed to permit remote review of such documents, retention of same, then review physically when possible. The step-by-step instructions from the government for doing this “COVID-19” process can be found here.

The new I-9 form is here!

Ok, maybe it’s not that exciting, but still the DOL has released its new I-9 form. It will be mandatory May 1, 2020. It can be found here, with its various other forms and versions. SHRM’s article, if readers are interested, re same, can be found here. Thank you as always to SHRM for great information; if you’re not a SHRM member, consider joining!

Per USCIS, employers should continue using the form of I-9 that expired 8-31-19

Even though the most current form I-9 expired 8-31-19, USCIS advises employers should continue to use it until the new version is released. The USCIS statement is found on its I-9 Central website, which employers can continue to check for release of the new version.

Shutdown shuts down E-Verify

DHS has shut down E-Verify during the pendency of the current government shutdown. DHS explains:

E-Verify Accounts Inaccessible

While E-Verify is unavailable, employers will not be able to access their E-Verify accounts to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts; and
  • Run reports.

Also, employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).

What’s an employer to do? For starters, DHS has suspended the 3-day deadline, which normally would require an E-Verify case to be commenced within the deadline for completing I-9’s, i.e., within the first three business business days following hire. Here is DHS’ list of accommodations and advice for employers during the shutdown:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.

  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.

  • We will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.

  • Employers may not take 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 due to the unavailability of E-Verify.

  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Source: See the DHS’ web page regarding the impact of the current shutdown on E-Verify, https://www.e-verify.gov/e-verify-and-e-verify-services-are-unavailable

Will other states follow California’s lead with enhanced National Origin protections?

Effective July 1, 2018, California has, by way of administrative regulations, enhanced the protections against national origin discrimination found in its mini-Title VII called the California Fair Employment and Housing Act.

These well-intentioned but poorly drafted regulations expand the definition of national origin, now, to include an individual’s or their “ancestor’s” “actual or perceived”:

  1. physical, cultural, or linguistic characteristics associated with a national origin group;
  2. marriage to or association with persons of a national origin group;
    tribal affiliation;
  3. membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  4. attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  5. name that is associated with a national origin group.

The regulations offer few helpful definitions to interpret these new rules.

  • What is a “physical, cultural or linguistic characteristic” besides an obvious accent?
  • What is a church “generally used by persons of a national origin group”? For example, one can guess that the Greek members of a Greek Orthodox church are protected, but how about the non-Roman members of a Roman Catholic church parish that includes people of every national origin?
  • What is a “name that is associated with a national origin group”? For example, is the name “Garcia” such a name, where it is generally considered the most common Hispanic last name, even though it is common in nearly every Latino country and non-Latino country, and is actually of Basque origin (with the Basque arguably not being Hispanic in the sense their traditional language is Basque not Spanish)?

One definition that is offered in these vague regulations is for the phrase, “national origin groups”:

“National origin groups” include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.

Unfortunately that definition raises more questions than it answers. For example, what does it mean to say someone identifies with “countries that are not presently in existence”?

The regulations also take a strong position against English-only rules. Under these new California regulations, English-only rules are never permitted during employee breaks, lunch, or employer-sponsored events, and only rarely permitted during working time and in workplaces when narrowly tailored as required by a business necessity.

With regard to accents, again, those seem to be protected as a national origin “characteristic,” and as such discrimination on the basis of accents is only permitted when, again, mandated as narrowly tailored to a business necessity.

The regulations expressly state that they protect even unauthorized immigrants. The only exception is when mandated otherwise by federal law. This is true even where the individual presents, as part of the I-9 process, a California driver’s license that expressly identifies the individual as an undocumented worker. The regulations also state that even a “single unwelcome act of harassment” may be sufficient to violate these laws, without explaining how it is that an employer can ask such a worker about their work authorization without inadvertently crossing the line into having asked a question that the worker found to be a “single unwelcome act of harassment.”

It remains to be seen whether other states will follow California’s lead, or if at some point the federal government will do so under Title VII. However, employers in every state may wish to take a moment to review these new regulations. Arguably their poorly drafted language does not, at least in some instances, expand Title VII so much re-interpret its existing requirements. If other jurisdictions do decide to follow California’s lead, they will hopefully provide employers with more clear language, especially since employers generally probably agree with the basic thrust of what the California bureaucrats who drafted these regulations intended.

Source: 2 California Code of Reglations 11027, et seq.

New I-9 form from USCIS

USCIS has issued a new I-9 form. Employers must begin using the new form no later than September 18, 2017, but no need to wait: Employers may begin using the new form before then.

Source: Revised Form I-9 Now Available | USCIS