Immigration and Customs Control (ICE), which was released early in the morning of July 20, but on July 18, confirmed that employers can extend flexibility in compliance with Form I-9 by an additional 30 days. This relaxation of the requirement to physically verify the identity and employment eligibility documentation of all new hires was granted earlier this year and extended in May and June. The expiration date for these accommodations is now August 19, 2020.
No further extensions to the March NOIs
As the Department of Homeland Security (DHS) expanded the virtual I-9 policy, theirs announcement confirmed that employers to whom Inspection Notice (NOIs) were sent in March 2020 and who are responding to ICE will not be granted any additional renewals. We expect no new NOIs to be released by the end of August, but ICE has not publicly confirmed this.
Expired list B documents are still permitted
The US Citizenship and Immigration Service (USCIS) Temporary Policy Acceptance of expired List B documents will continue and employers may need to keep track of the documents treated as supporting documents. According to the guidelines in the provisional directive, any expired List B document that has not been officially expanded by the state issuing authority should be treated as a receipt. However, within 90 days of the DHS’s termination of this temporary policy, the employee must provide a valid, not expired document to replace the expired document that was presented on the initial posting. The employee can also submit another document.
Alternatives to the virtual I-9 method and return to business
Employers should consider other options for the virtual policy sooner rather than later, since the policy is likely to end before companies actually start working again. The proxy model should be considered and carefully implemented when selected. In addition, companies that have used the virtual option and are about to resume business must ensure that all employee documents that have been remotely verified are physically verified within three days of returning to work. All of these issues were covered in our previous blog: Still no word from ICE. Unfortunately, ICE has not yet released additional logistics information when completing Forms I-9, including cases where new documents have been submitted or where the person who physically examines documents differs from the original remote examiner.
It is temporary
ICE has made it clear that the agency has no interest in continuing the virtual review indefinitely, nor does it intend to waive the request for a personal review once the companies return to work. Accordingly, employers must consider applying for legislative and policy changes through the administration and Congress.
If you have any questions about these policy changes, compliance with I-9, enforcement of working conditions, e-verification and anti-discrimination of the DOJ, please contact the Seyfarth Immigration Compliance and Enforcement Group or the author. Dawn Lurie directly at [email protected]
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