On January 20, 2020, the CDC confirmed the first case of COVID-19 in the United States. The struggles employers have experienced in the months (and now years) since this date are well known. To prevent the spread of this then-unknown virus, many employers transitioned to full remote work, while others continued to have essential workers on-site. Faced with COVID-19, employers were forced to change their work habits and administrative processes. The pandemic also prompted temporary changes to many government policies, including process and verification changes related to USCIS’ Employment Eligibility Verification Form (Form I-9, which in the immigration field is fondly referred to as the “I-9”).
The question is: Did employers continue to follow the stringent and technical requirements that are required in the Form I-9?
Some employers simply use the same Form I-9 they have always used without checking the I-9 Central website. While the Form I-9 itself was last updated before the pandemic, (the latest form version has a revision date of 10/21/2019), these employers could have also missed multiple Department of Homeland Security (DHS) policies created during the pandemic to help employers continue to meet their legal obligations. Employers should regularly reference the I-9 Central website available at https://www.uscis.gov/i-9-central when faced with new hires, rehires, or employees with work authorization changes to ensure they remain up to date.
As noted by DHS, “employers have certain responsibilities under immigration law during the hiring process.” Employers must be aware that failing to complete Form I-9 correctly can translate into significant penalties for violating federal immigration laws, including civil fines, criminal penalties, and even debarment from government contracts. For example, the government sets fines for substantive I-9 paperwork violations based on how many I-9s have issues. If, as often happens, fifty percent of the I-9s have a substantive paperwork error, the base fine for each I-9 is $2,005. The government can then enhance that fine by up to 25% based on five factors including business size, good faith, seriousness, unauthorized aliens, and history. Form I-9 fines can be significant, even for simple paperwork errors where there are no unauthorized workers.
Reviewing the I-9 Central website provides clients with the primary governmental source of information on how I-9s should be completed and retained, including webinar trainings and even examples of I-9 identity and employment eligibility documents. Moreover, this website is also the quickest source of I-9 updates on any policies from USCIS, and therefore the primary resource that HR departments should be referenced regularly.
With a shift in how the public feels about the pandemic, many employers have returned to their status quo before 2020. And with this shift, USCIS has proactively updated its temporary policies related to COVID-19 with a focus on helping employers continue to comply with immigration policy. Some of the updates to current policies are noted below:
- The Department of Homeland Security (DHS) had allowed employees to present expired List B documents to complete an I-9 from May 1, 2020, through April 30, 2022. This flexibility was due to employees experiencing significant delays in obtaining document renewals from governmental agencies or other sources due to the economic effects of COVID-19. This temporary policy ended on May 1, 2022, and required employers to update these employees’ Forms I-9 by July 31, 2022, to reflect the inspection of List B’s unexpired identity documentation.
- DHS and U.S. Immigration and Customs Enforcement (ICE) have also extended the flexibility to defer in-person inspection of documents for employers and workplaces that are “operating remotely” until October 31, 2022. In short, if the employer has a workforce that works exclusively remotely due to COVID-19 precautions, the employer can remotely inspect and retain copies of the identity and employment eligibility documents for employees hired on or after April 1, 2021. Other requirements include the need for employers to create written documentation of their remote onboarding and telework policy for each new employee. ICE guidance has not been clear with these requirements flexibility and it has shifted during the pandemic. It is important to reference I-9 Central to understand all technicalities relevant to this temporary policy.
It is also important to highlight that DHS and ICE have encouraged employers to begin the in-person physical verification of identity and employment eligibility for employees who previously underwent remote inspection during the pandemic. If employers can begin the in-person verification process, they should strongly consider doing so now as the government may not extend the policy beyond October 31, 2022. In addition, many employers are now bringing their workforce back to the office. The policy states that “[o]nce normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9.” The government also clarified that once employees undertake “non-remote employment on a regular, consistent or predictable basis” the flexibilities no longer apply. Given the number of temporary policy changes that have occurred as a response to COVID-19, employers should prioritize the best practice of self-auditing their Forms I-9, with a special emphasis on reviewing the forms for employees hired since March 20, 2020. The new temporary guidance from DHS provides very detailed requirements on notations and record retention to fully comply with the announced flexibilities. Form I-9 audits, initiated with a Notice of Inspection requiring employers to produce all I-9s and related documentation within three days, have also recently increased. Due to the short timeline to respond and significant potential fines, employers are well advised to conduct a company self-audit or seek out experienced counsel to assist with a review of I-9s and related documentation in advance of any audit. Further, if the employer is contacted by officials from DHS, employees from the Immigrant and Employee Rights (IER) at the Department of Justice, and/or employees from the Department of Labor (DOL), they should contact their immigration attorney immediately to ensure they have assistance in responding and in proper compliance with any potential I-9 inspections.
While COVID-19 has taught the world many lessons, particularly in immigration work, it has also brought to light the importance of relying on experienced counsel who can guide employers through these difficult times. Employers can limit potential liability by carefully tracking I-9 requirements and changes as reported by I-9 Central and by reaching out to their immigration attorney when help is needed.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the August 18, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.