Employers Get Guidance on Flexible Provision for Form I-9

Employers received a walk-through March 17 on how to use a special coronavirus provision for Form I-9, Employment Eligibility Verification, as they operate remotely because of the coronavirus pandemic.

The provision, which was last set to expire Jan. 1, 2021, has been extended several times and is in place at least through March 31, said Jennifer Nelson, an expert on the E-Verify program with the U.S. Citizenship and Immigration Services at the Department of Homeland Security.

The provision only applies to workplaces that are operating remotely, Nelson said at the American Payroll Association’s online Capital Summit. The guidance highlights the temporary policy regarding documents in Section 2 of Form 1-9, which the employer or the employer’s authorized representative fills out.

Under the guidance, employers:

• must provide written documentation of their telework and remote online policies to employees;
• may remotely inspect documents required in Section 2 of Form I-9 remotely, but must still do so within three business days of the employee’s first paid day; and
• must the retain copies, entering “Remote Inspection completed on MM/DD/YYYY” in the Additional Information field of Section 2.

After a return to normal operations, employers must inspect the documents with the employee present within three business days. Employers should write “COVID-19—Documents physically examined on MM/DD/YYYY” with the initials of who performed the inspection put in the Additional Information field in sections 2 or 3.

When handling List B identity documents under the temporary rules, which employees might have challenges renewing during the pandemic, employers may treat identity documents that expired March 1, 2020, and later and were not extended by the issuer as a valid receipt for an acceptable document on Form I-9, Nelson said. Employers should enter “COVID-19” in the Additional Information field of Section 2 during the flexible rules period.

Up to 90 days after the temporary policy has expired, an employee must then present a valid, unexpired document. Employers should then record the required document information from the valid document, initial, and date the change, the guidance said.

If the document was extended by the issuer, the employer should enter the expiration date in Section 2 and fill out the Additional Information field with “COVID-19 EXT.” A valid, unexpired document is not required, the guidance said.

Employment Authorization Document delays and extended time frames for E-Verify in handling tentative nonconfirmations also may be treated differently during the pandemic. The period for taking action to resolve such nonconfirmations in E-Verify regarding Social Security issues was extended as long as Social Security Administration offices remain closed to the public during the pandemic.

Under the guidance, employers must notify employees about a tentative nonconfirmation result as soon as possible, Nelson said. Employees who choose to take action are referred to the SSA or the DHS, and the employer informs E-Verify about the employee’s decision. The employee continues to work during the process, she said.

Employers may not take adverse action against an employee while a case is in interim or extended interim status, Nelson said.

More information on coronavirus-related issues is available online at the agency’s webpage on temporary COVID-19 policies.