Tag: I-9

Available Options for Completing Form I-9 in Remote-Work Scenarios

The American Immigration Lawyer’s Association (AILA), through its Verification and Documentation Liaison Committee (“Verification Committee”) recently issued an FAQ compiling updated information related to employment verification (I-9) compliance requirements during the COVID-19 Pandemic.

The FAQ addresses the viable options for completing the Form I-9 in remote-work scenarios and the most current developments in each type of process. Below are the main takeaways:

Process 1: In-person New Employee and HR/Admin Document Review: HR/Admin timely reviews the employee’s identity and employment authorization documents in the employee’s physical presence. Where employers have fully returned to in-office operations, or where they are no longer maintaining COVID-19 precautions, they must complete an in-person review of Form I-9.

Process 2: “Remote Hire” In-Person New Employee & Employer Authorized Representative Document Review: This is the so-called “Remote Hire” process, typically used in situations of on-boarding and new remote employee. Note that this is still an in-person document review conducted by a third party designated by the employer who acts as the agent. Also note that this process is not restricted only to employees based at remote locations but can also be used in any situation. Since the employer bears the liability for the agent’s errors it is best practice for the employer to train and/or provide instructions to the agents as well as perform a detailed review upon receipt of the completed Form I-9.

Process 3: Limited Temporary Option: HR/Adm’s Electronic Document Review: The virtual review option was first implemented March 20, 2020, and has been extended multiple times. The current extension expires July 31, 2023. With this process, HR/Adm timely reviews the employee’s identity and employment authorization documents electronically, not in the employee’s physical presence, but via video link, fax, email, etc.

Who can benefit from this option? The U.S. Immigration and Custom Enforcement (ICE) confirmed to the Verification Committee the general rule in applying this option:

  • Before April 1, 2021, the temporary I-9 option was available if a business was operating 100% remotely as a result of the pandemic. If it was not, the in-person verification for Form I-9 was required. ICE acknowledged, however, that the Agency will handle audits and future enforcement on a case-by-case basis. Employers do not need to have 100% of their workforce working remotely to take advantage of the virtual option if the employer has a record supporting that the virtual review option was necessitated by the pandemic.
  • On or after April 1, 2021, the temporary virtual document review option is available, but only where the remote employment is a result of COVID-19-related precautions. Employers hiring “true remote” employees should conduct in-person reviews as they would have prior to the COVID-19 virtual review option being offered.

While virtual review provides a practical alternative to the in-person review, there are additional requirements in this process in order to maintain compliance:

  • Create and retain a written document that captures the remote onboarding and telework policy in place when this option is used for any Form I-9 created under this process;
  • Retain copies of the documents presented, as per the original guidance issued by ICE Note that security of sensitive personal information must be maintained, and the company should work with its information-security team regarding the transmission and/or capture of personal information in these situations;
  • Add “COVID-19” in the Additional Information field/box on Section 2 of the Form I-9;
  • Tell the employee that no later than three business days of cessation of this temporary electronic document review option or once the employee commences non-remote employment on a regular, consistent, or predictable basis (whichever is earlier), an in-person meeting and physical inspection of the document(s) will occur;
  • Within three business days of such a date, coordinate the in-person meeting and physical inspection of the document(s); and,
  • Add “documents physically examined,” date and initial in Section 2 Additional Information field/box, or to Section 3 of Form I-9, as appropriate.

Importantly, the virtual review process requires the employer to “perfect” the Form I-9 with an in-person meeting at a future date.

The Department of Homeland Security (DHS) is currently reviewing the regulatory framework for document review in considering making virtual review a permanent option for I-9 compliance. DHS published a Notice of Proposed Rulemaking in the Federal Register and, since November 2022, has been reviewing comments. Simultaneously, ICE has ramped up audits and investigations as the pandemic has waned. Therefore, employers should maintain a fluid line of communication with their attorneys and employees to avoid any compliance issues.

Article By Caterina Cappellari of Greenberg Traurig, LLP

For more immigration legal news, click here to visit the National Law Review.

©2023 Greenberg Traurig, LLP. All rights reserved.

Latest I-9 Virtual Flexibility Guidance

On Oct. 11, 2022, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension to compliance flexibilities governing Form I-9. The extension permits continued remote verification and additional Form I-9 flexibilities until July 31, 2023.

ICE initially implemented the policy in March 2020, presumably responding to increased remote employment due to COVID-19. These flexibilities were narrowly and exclusively applied to employers and workplaces that were 100 percent remote, reflecting the agency’s long-standing resistance to remote I-9 verification. ICE granted some discretion in the physical presence requirements associated with Form I-9, allowing employers to inspect documentation remotely. Employers were instructed to state “COVID-19” in Section 2 on Form I-9.

Many employers have since implemented telework arrangements to adapt to changes brought about by the COVID-19 pandemic. ICE’s guidance since March 2020 has been revised to suggest that positions that are remote, even if other positions at the same employer are not remote, are eligible for remote I-9 verification. Further reflecting the changing nature of the workplace, on Aug. 18, 2022, DHS announced a Notice of Proposed Rulemaking (NPRM) intended to explore alternative regulatory options, including making some of the current pandemic-related flexibilities permanent.

The proposal includes a pilot program and framework allowing the DHS secretary to authorize optional alternative documentation examination procedures in the event of heightened security needs or a public health emergency. Moreover, DHS proposed adding boxes to Form I-9 that allow employers to report alternative procedures used to complete Section 2 or Section 3, as well as updates to form instructions to clarify the purposes of these boxes.

Importantly, this NPRM doesn’t itself adopt a specific remote I-9 procedure – it is intended to formalize DHS’ authority to make some form of remote I-9 verification permanent. Subsequent adoption of I-9 remote verification procedures would require separate rulemaking.

Article By Tejas Shah and Mandira Sethi of Barnes & Thornburg LLP

For more immigration law legal news, click here to visit the National Law Review.

© 2022 BARNES & THORNBURG LLP

DHS May Make Form I-9 Flexibility a Fixture

The Department of Homeland Security (DHS) announced it is considering changes to the Form I-9 documentation examination procedures. As human resources teams know, the remote workplace that became common during the COVID-19 pandemic made an already complicated I-9 process a logistical nightmare. With the U.S. government’s declaration of a national emergency due to the COVID-19 pandemic, DHS and Immigration and Customs Enforcement (ICE) announced certain flexibilities in March 2020 that suspended the requirement of in-person review of I-9 documents when a company was operating remotely due to COVID-19. Those flexibilities have been extended numerous times and are currently set to expire Oct. 31, 2022.

While DHS says it is considering making these temporary flexibilities permanent, the Notice of Proposed Rule Making (NPRM) published last month does not seek to do so. Instead, the NPRM seeks to validate the authority of the DHS secretary to enact flexibilities, offer alternative options, and/or implement a pilot program to evaluate existing and additional alternative I-9 procedures for some or all employers. DHS recognizes that more and more employers are utilizing telework and remote work for their employees and that requiring in-person review of I-9 documents is no longer consistent with work patterns of many businesses.

Some of the more notable possible changes to the I-9 process described in the NPRM include requiring employers to note on the Form I-9 which of the alternative procedures they used; requiring employers to retain copies of I-9 documents; requiring online training on fraudulent document and/or anti-discrimination training for employers who wish to utilize the alternative procedures; and limiting eligibility to use the alternative procedures to employers that utilize E-Verify, the government’s online employment verification system.

Comments to the NPRM are due on or before Oct. 17, 2022.

Article By Rebecca B. Schechter of Greenberg Traurig, LLP

For more immigration legal news, click here to visit the National Law Review.

©2022 Greenberg Traurig, LLP. All rights reserved.

DHS Proposes Rule Updating I-9 Verification Requirements

On August 18, 2022, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would grant it broader authority to permit alternative document inspection procedures for I-9 document verification in lieu of the physical inspection requirement.

In response to the COVID-19 pandemic, DHS implemented temporary accommodations for remote I-9 document inspection in order to encourage social distancing and remote work. These accommodations have been extended several times, and currently remain in effect until October 31, 2022. While the proposed rule does not directly make these accommodations permanent, it does codify into the regulations the agency’s authority to set forth either temporary or permanent alternative document inspection procedures.

The proposed rule provides significant flexibility to DHS in determining whether, when, and how to implement alternative examination procedures. According to the proposed rule, DHS may implement new examination options as part of a limited pilot program, upon the agency’s determination that such alternative procedures would not diminish the security of the I-9 verification process, or as a temporary measure in response to a public health emergency.

The proposed rule also includes details about how DHS may implement future document inspection changes, including:

  • limiting implementation only to employers enrolled in E-Verify

  • updating document retention requirements

  • changing the Form I-9 to allow employers to clearly note the use of alternative examination procedures

Now that the proposed rule has been published in the Federal Register, the public will have a 60-day comment period to provide feedback on the proposal as well as comments on how DHS may use this additional authority to make I-9 document inspection easier for employers. After the public comment period closes, DHS will have the opportunity to review and analyze all comments provided and, should the agency decide to move forward with the regulation, proceed with publishing the final rule.

Article By Derek J. Maka of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more immigration legal news, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

The Time to Comply is Now: The New “I-9 Sheriff” is in Town!

As we have previously informed our readers, the Department of Homeland Security (DHS) has issued yet another update to U.S. Citizenship & Immigration Services’ (USCIS) Employment Eligibility Verification Form (commonly referred to as Form I-9).

As of September 18, the revised Form I-9 is in effect, bringing a new paperwork duty for all U.S. employers. All employers who have not already done so must immediately disregard the old version of and begin using the new version of Form I-9. The new form is accessible on the (USCIS) website, and older versions of Form I-9 are no longer available to the public. The new version of Form I-9 is not required for existing employees, since it pertains only to new hires joining a company on or after September 18, 2017.

Following are some reminders for employers to keep in mind during the onboarding process:

  1. While the core requirements of Form I-9 remain unchanged, employers will find minor revisions concerning the instructions and the list of acceptable documents that confirm an intended employee’s identity and employment eligibility. Specifically, USCIS changed the name of the U.S. Department of Justice’s enforcement arm on employment eligibility compliance, namely from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name of Immigrant and Employee Rights Section. What is more, USCIS modified the form’s instructions by removing “the end of” from the phrase “the first day of employment.” As a result, employers should amend their Form I-9 procedures to ensure that all intended employees complete the form’s Section 1 at the outset of the first day of employment.
  2. USCIS has also revised the list of acceptable documents concerning employment eligibility. Notably, USCIS added the Consular Report of Birth Abroad Form (Form FS-240) as an acceptable List C [employment eligibility] document. Form FS-240 is generated by the U.S. Department of State (DOS) at U.S. embassies worldwide to record the birth of a U.S. citizen outside U.S. territorial limits. Now, employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C pertaining to Section 2 and Section 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9. Lastly, USCIS combined all the certifications of report of birth issued by the DOS into selection C # 2 in List C and renumbered all List C documents, except the Social Security card.

USCIS has included all these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is more user friendly than older editions of this document. Unlike previous versions of M-274, users can no longer download the handbook as a PDF document. Instead, USCIS has now organized and posted the M-274 handbook’s content as a web-based resource. It is yet unclear how USCIS will be updating this document.  By consequence, employers should regularly review the most updated, on-line content of the M-274 handbook, as it will likely be a more dynamic document.

3.  Another valuable resource for employers handling Form I-9 issues is the I-9 Central webpage available on the USCIS website. This webpage provides additional information about Form I-9, including learning resources and frequently asked questions.

Although the changes to Form I-9 are minor, failure to use the new version of the form can result in significant fines. Employers should therefore revisit their compliance policies to ensure a seamless transition to the new Form I-9.

This post was written by Roy J. Barquet of Foley & Lardner LLP © 2017
For more Immigration Legal Analysis go to The National Law Review

Department of Homeland Security Seeks Comments for New ‘Smart’ Form I-9

For its proposed 13th iteration, the I-9 form is getting “smart” new features. The suggested changes to the form from the Department of Homeland Security include:

  •  Validation of certain fields to ensure the entered information is correct;

  • Helpful on-screen text for various fields;

  • Space to enter more than one preparer or translator;

  • Drop-down menu for the list of acceptable documents to cut down on entry errors;

  • A dedicated notes area for information employers now have to note in the margins;

  • A QR code to facilitate ICE audit reviews;

  • Replacement of the “other names used” field with “other last names” used; and

  • Provision of either I-94 or foreign passport, instead of both.

While the “smart” form will facilitate on-screen data entry and completion of the Form I-9, it is not an electronic form. After completion, employers not using an electronic I-9 system will have to print out the Form I-9 for signature by the foreign national and the employer.

Public comments on the revisions will be accepted through January 25, 2016, here. After USCIS reviews the comments and makes changes it deems appropriate, it will publish a second notice in the Federal Register. After that, the public has 30 days to provide comment before the regulation becomes final.

The current I-9 form expires on March 31, 2016. After that date, USCIS will have to extend the validity of the current form or introduce its new form.

Article By Nicola Ai Ling Prall of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Federal Register Announces TPS Extended for Somalia – I-9 Update Temporary Protected Status

As published in the Federal Register on June 1, 2015, Temporary Protected Status (TPS) designation was extended for Somalian nationals currently living in the United States.  Somalia’s TPS extension and re-designation is for an additional 18 months, from September 15, 2015 through March 17, 2017.  This action was taken after the Secretary of Homeland Security determined the ongoing armed conflict in Somalia posed a substantial threat to living conditions in the country.  Employers should alert all company representatives responsible for the completion of I-9 forms about this development.

TPS Extension and Re-Designation

A country can be designated for TPS due to temporary conditions in the country that prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.  Individuals granted TPS benefits are not removable from the United States, can obtain an employment authorization document (EAD) to work in the United States, and may be granted travel authorization to travel outside the United States.  The granting of TPS does not, however, result in or lead to permanent resident status.

Somalia was initially designated under the TPS provisions in 1991, with re-designation in 2001 and 2012.  The announced extension of TPS designation for Somalia for an additional 18 months, from September 15, 2015 through March 17, 2017, allows current TPS beneficiaries from Somalia to retain TPS through March 17, 2017, so long as they otherwise continue to meet the eligibility requirements for TPS.

For individuals who have already been granted TPS under one of the previous designations, the 60-day re-registration period runs from June 1, 2015 through July 31, 2015.  USCIS will issue new EADs with a March 17, 2017 expiration date to eligible Somalia TPS beneficiaries who timely re-register and apply for EADs under this extension.  DHS is NOT granting interim work permission through an automatic extension of work authorization, so applicants should file their EAD renewal applications as soon as possible before their current EADs expire in September 2015.

Certain individuals of Somalia who have never applied for TPS may be able to apply under the late initial registration provisions, as long as they (a) can satisfy one of the late initial filing criteria; and (b) meet all TPS eligibility criteria.

ARTICLE BY Ian R. Macdonald of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

U.S. Citizenship and Immigration Services (“USCIS”) Form I-9 Finally Makes Its Appearance

The National Law Review recently published an article, U.S. Citizenship and Immigration Services (“USCIS”) Form I-9 Finally Makes Its Appearance, written by W. Chapman Hopkins of McBrayer, McGinnis, Leslie and Kirkland, PLLC:

McBrayer NEW logo 1-10-13

U.S. Citizenship and Immigration Services (“USCIS”) just announced the long-awaited new Form I-9, Employment Eligibility Verification.  Although the previous form expired on August 31, 2012, employers have continued using the previous form pending the issuance of the revised form.

As before, all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including citizens and non-citizens. The form requires input from both the employee and employer (or an authorized representative of the employer). Although the new form is largely substantively the same, several stylistic changes were made in order to make it easier to read and more user-friendly.

For example, the instructions are clearer and there are new distinct data fields for employee information. The entire document consists of nine pages, with only two of these (pages 7 and 8) requiring completion. When providing the form to employees to fill out, however, it is important to provide the entire form so that they may read all instructions.

If your business maintains an electronic I-9 system, you should receive an update from your vendor about implementation. If you use paper versions, you can access the form here. It is a fillable PDF file, but may also be completed by hand. Despite only two pages requiring information, the form in its entirety should be kept on file.

Employers can start using the new form immediately, but must use it after May 7, 2013, as the old form will no longer be accepted after that date. Failure to use the new form could result in fines and penalties. Remember that required government forms are free, so you should never have to pay to be in compliance.

The USCIS provides in-depth detail about Form I-9, however government instruction is not legal advice.

© 2013 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

USCIS Correction: Most Employers Must Complete English Version I-9

Varnum LLP
On March 12, 2013 the USCIS announced the new Form I-9 is available and may be completed in English or Spanish. Today, March 13, 2013, USCIS clarified that Spanish I-9 is available for completion only by Puerto Rico employers.
USCIS incorrectly announced full use during a teleconference but has now clarified onwww.USCIS.gov that the Spanish new form I-9 may not be used by employers (except Puerto Rico employers). Employers may continue to use the Spanish form for reference, but the English version must be completed.

The new Form I-9 is available in English and Spanish. In addition, USCIS has published aHandbook for Employers to provide guidance for completing the new Form I-9.

Employers are required to use the new Form I-9 beginning on May 7, 2013, but it may be used immediately. USCIS will accept prior versions of Form I-9, “(Rev. 08/07/09) Y” and “(Rev. 02/02/09) N”, until May 7, 2013.

Immigration Law Alert – USCIS Extends Form I-9 Validity Period Past Aug. 31, 2012 Expiration Date

On Aug. 13, 2012, U.S. Citizenship and Immigration Services (USCIS)announced that employers should continue using the current version of the Form I-9 after the form’s expiration date of Aug. 31, 2012. The Form I-9 is the employment verification form designed to help employers verify individuals who are authorized to work in the United States. The current version of the Form I-9 has the expiration date of Aug. 31, 2012 printed in the upper right corner and the revision date of Aug. 7, 2009 printed in the lower right corner.

Previously, on March 27, 2012, USCIS published a proposed revision of the Form I-9 and accepted comments on the proposed form until May 29, 2012. USCIS’s announcement instructing employers to continue to use the current form until further notice indicates that the agency will not publish a final revised Form I-9 before the expiration date of the current Form I-9.

Additional information regarding the new I-9 form will follow as it becomes available.

© 2012 BARNES & THORNBURG LLP