USCIS Provides Form I-9 Mockups to Illustrate Temporary COVID-19 Policies
Last week, the United States Citizenship and Immigration Services (USCIS) updated their guidance on how to annotate the Form I-9 when remotely inspecting employment authorization and identity documents and performing the required physical inspection at a later date.
As announced earlier last week, DHS has extended its flexible I-9 verification option until July 19, which enables businesses that are operating remotely to inspect an employee’s documents “virtually” and then follow-up with an in-person inspection when normal business operations resume. As part of that two-step process, employers are required to write special annotations on the Form I-9, which may be reviewed by DHS auditors during an I-9 inspection.
In response to stakeholder questions surrounding these processes, the USCIS has updated its COVID-19 FAQs and published a series of Form I-9 mockups (or exemplars if you will), that illustrate a variety of scenarios that may occur through the virtual verification process. The guidance also provides examples of how to annotate the Form I-9 when a new hire employee presents an expired driver’s license or state ID that may be accepted under DHS’ COVID-19 temporary policies.
While this new guidance (and the pictures) mostly speak for themselves, there are a few things worth noting. First and foremost, the USCIS indicates that the mockups are intended to assist employers for I-9s completed “in the future” where a COVID-19 exception applies. Employers are not required to update their I-9 forms based on these examples if there are differences.
Put another way, if your I-9s look different than these, don’t panic! DHS recognizes (or rather, they should recognize) that employers were largely left to their own devices to figure out how to mark up their I-9s in these situations. Employers should not be penalized (or forced to go back and make updates) if they used reasonably alternative wording or methods for annotating their I-9s.
It’s also worth noting that in some cases (as described below), the USCIS has changed their previously issued FAQs on how to update I-9s. As with many things these days, I suspect that some of the guidance was implemented “on the fly” and thus variations are to be expected.
With all of that in mind, below is a detailed walk-through of the changes and USCIS illustrations that describe each COVID-19 Form I-9 scenario in some detail.
Scenario #1 Completing Section 2 When Inspecting Documents Remotely
When inspecting documents remotely (or “virtually” as we sometimes call it), employers must fully complete and sign Section 2 of the Form I-9 within 3 business days of the employee starting work for pay. Since these I-9s will look identical to I-9s that were completed with a physical inspection of the documents, USCIS is suggesting that employers annotate the Form I-9 to indicate that a remote inspection has occurred.
In their revised FAQ, the USCIS notes that employers “may indicate that remote inspection was completed and when” in the Section 2 Additional Information box. As illustrated in the mockup below, the USCIS suggests writing “Remote inspection completed on xx/xx/xxxx”.
Compliance Note: previously, the USCIS FAQ indicated that employers “should” enter “COVID-19” in the Additional Information field” at the time of Section 2 completion. This strict requirement has apparently been dropped (“should” has now become “may”), and instead (as described below), employers are now required to enter the “COVID-19” language when the physical inspection occurs.
Scenarios #2 and 3 Performing Physical Inspection Once Normal Operations Resume
Per the original ICE memo, employers are required to conduct a physical inspection of the employee’s documents within 3 business days of normal operations resuming. Once this occurs, USCIS indicates that employers should enter “COVID-19,” the date of the physical inspection and who conducted it in the Additional Information field.
The USCIS has also added some additional nuance to their instructions by illustrating two different physical inspection scenarios:
- The physical inspection is conducted by the same individual who examined the documents remotely and signed Section 2 or
- The physical inspection is conducted by a different person – typically, this might be an authorized representative
In the case of a physical inspection performed by the same individual, the employer should indicate the date they physically examined the documents and then add their initials in the Additional Information field as illustrated below:
In the case of a physical inspection performed by a different individual, the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field as illustrated below:
Compliance Note: previously, the USCIS FAQ indicated that whoever performs the physical verification should also sign Section 2 – an instruction that many found confusing since Section 2 of the Form I-9 would have already been signed. Under this new revised guidance, DHS now simply recommends recording information in the Additional Information box as illustrated above.
Scenario #4 Notating Remote and Physical Inspection for Reverification
In their revised guidance, USCIS indicates that employers should make required notations for remote and subsequent physical inspections of reverifications in the Additional Information field in Section 2. Similar to the guidance above, USCIS notes that if the same person performs both the remote and subsequent physical inspections for a reverification, they simply need to enter the date and their initials. Conversely, if a different person performs the physical inspection, that person should write their full name and title, instead of their initials.
The following image from the USCIS illustrates the first reverification scenario, where the person conducting the physical review is the same person who performed the remote reverification.
Compliance Note: although not specifically mentioned, employers should also be able to insert the recommended markups in the margin of Section 3 (next to the reverification), provided that the resulting annotations are clear and legible to an inspecting officer.
Scenario #5 Entering a List B Document Extended by an Issuing Authority in Section 2
As discussed in our previous blog article, the USCIS has implemented a new temporary policy which enables employers to accept an expired List B driver’s license or state ID for Form I-9 purposes without further obligation so long as the following two conditions have been met: (1) the ID must have expired on or after March 1, 2020, and (2) the state issuing authority must have extended the ID’s expiration date by virtue of announcement.
Employers are instructed to enter the document’s expiration date in Section 2 and enter “COVID-19 EXT” in the Additional Information field as shown in the illustration below. Employers may also attach a copy of the state motor vehicle department’s webpage or other notice indicating that their documents have been extended.
Compliance Note: the USCIS has not made any substantive change to their prior expired driver’s or state ID instructions.
Scenario #6 Entering an Expired List B Document in Section 2 When NOT Extended by an Issuing Authority
Last, but not least, the USCIS had also previously issued guidance to employers on how to handle expired List B documents when the state issuing authority had NOT extended the expiration date. As described in our prior blog, employers may treat such documents as receipts which require follow-up for a replacement document within 90 days after the USCIS’ temporary policy has been terminated.
When an employee provides an acceptable expired List B document that has not been extended by the issuing authority, employers are instructed to record the document information in Section 2 under List B and, enter the word “COVID-19” in the Additional Information Field as illustrated below.
Then, within 90 days after USCIS’ termination of this temporary policy, the employer must ask the employee to present a valid unexpired document to replace the expired document presented when they were initially hired. Employers are instructed to record the number and other required document information from the actual document presented in the Section 2 Additional Information box, and initial and date the change as shown below.
Compliance Note: although not specifically mentioned, employers should also be able to insert the recommended markups in the document information fields in Section 2, provided that the resulting annotations are clear and legible to an inspecting officer.
Ongoing Guidance and Information
HR professionals reading this alert will likely have additional questions regarding these new temporary Form I-9 and E-Verify policies, which appear to be coming out from the DHS at a rapid pace. LawLogix is here as a resource, so please feel free to contact us with any questions you might have.
And if you’re interested in learning more about the Guardian Electronic I-9 and E-Verify platform (which guides employers through these various rules), please visit us here for more information.