Updates on I-9 Processing

As businesses try (again) to return to normal in these pandemic times, the federal government is adjusting its stance on I-9 processing – extending some flexibilities and retracting others.  This article provides a brief overview of the current requirements and links to helpful resources.

As a reminder, all employers in the United States are required to verify the identity of their employees and their eligibility to work in the United States.  This is achieved at hire by completing the I-9 form.  Both employer and employee play a role in completing the form: the new hire must complete Section 1 of the form no later than the first day of work (it may be completed sooner, but only after the employee has received and accepted an offer of employment), and the employer or its authorized agent must complete Section 2 of the form (physical review of identity and eligibility documents) within 3 business days of the employee’s first day of work.  Section 3 must be completed by the employer at rehire or when reverification is needed.

Under normal circumstances, physical examination of identity and eligibility documents is required for all employees – whether they work in the employer’s physical worksite or remotely.  (Employers may hire agents or representatives in remote work locations to achieve this.)  The purpose of physically handling the documents is to determine whether they appear to be genuine and relate to the person presenting them.  The government will only accept certain documents for this purpose, which are identified on the I-9 form instructions as List A, List B, or List C.  The employee has the right to choose which documents to present for this purpose – either a List A document, which verifies both identity and eligibility; or one each from List B and List C, which verify identity and eligibility, respectively.  Dictating which documents are presented, or refusing to accept documents presented, is called “document abuse” and may give rise to liability for unlawful immigration-related employment practices.

During the pandemic, the Department of Homeland Security (DHS) temporarily suspended the physical examination requirement for employees who were working remotely due to COVID-19 precautions, allowing employers to complete the I-9 through virtual examination of documents, or by scan, email, or fax.  This flexibility has now been extended again until October 31, 2022.  However, as business returns to “normal,” employers are required to resume compliance with full I-9 processing standards.  In addition, employers are required to complete physical examination of documents when the employees resume regular work in the workplace; physical examination requirements will apply to workers working remotely for non-pandemic reasons, as well.  More information about this flexibility may be found here.

Another flexibility allowed by DHS during the pandemic allowed employers to accept certain expired List B (identity) documents, due to governmental processing delays in renewing identity documents.  Recently, DHS announced that employers could no longer accept expired documents starting May 1, 2022.  Furthermore, employers who accepted expired documents between May 1, 2020 and April 30, 2022, are now required to verify the employee’s identity with a current List A or List B document before July 31, 2022.  DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents (e-verify.gov)

On the other hand, reflecting a different kind of governmental backlog, DHS recently announced that foreign workers with certain employment authorization documents may be eligible for automatic extensions of 540 days (rather than 180 days) if the extension is timely filed before October 26, 2023.  See DHS Automatic extensions of employment.

What employers should do now:

  • Review your I-9 practices, governmental statements, and compliance requirements (such as those linked here and contained in the DHS I-9 Handbook For Employers) to ensure that you are complying with all requirements, whether you are eligible for flexibilities or not.
  • Follow DHS instructions for proper processing of  updates, including subsequent physical examination of documents, and notation of “extended” automatic extensions.
  • Review employee onboarding dates and work locations to determine which employees require additional document review and I-9 updates; complete review and updates for all employees who are no longer eligible for flexibilities.
  • Review I-9s completed between May 1, 2020 – April 30, 2022, to determine whether expired List B documents were accepted, and complete additional document review and I-9 updates.
  • Timely complete physical examination of documents for employees who are returning to the workplace on a regular basis – and those whose remote work is unrelated to pandemic precautions.

Melissa Calhoon Jones is chair of the labor and employment group.  For more information about this regulation and other employment concerns, please contact her.

This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.

Reprinted in the July 6, 2022 issue of the National Association of Manufacturers Legal Advisory Council Newsletter presented by Meritas.