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USCIS publishes COVID-19 Q&As Relating to Form I-9 and E-Verify

The United States Citizenship and Immigration Services (USCIS) has launched a dedicated Q&A webpage to address the new temporary Form I-9 and E-Verify policies which have been implemented as a result of the Coronavirus (COVID-19). While many of these issues have been previously announced, the Q&A page includes some new information and guidance that should be reviewed by any organization hiring during the COVID-19 pandemic.

The entire Q&A can be viewed on the USCIS site here. We’re also providing a condensed cheat sheet below, which outlines the new guidance as well as some lingering questions and concerns (which may be addressed by the agency in the future).

But first, here is an executive summary of what’s new:

Executive Summary:

  • USCIS confirms that employers have two I-9 verification options during the COVID-19 pandemic: virtual verification and the use of an authorized representative
  • Employers completing a virtual verification should enter “COVID-19” in the Additional Information field when the I-9 is being completed (note: the ICE memo mentioned adding this notation after the physical document inspection occurs)
  • Once the in-person review has taken place, employers need to annotate the I-9 with the date of the physical inspection and who conducted it (the latter is a NEW requirement)
  • Employers conducting a virtual review for reverification (Section 3) should enter “COVID-19 EXT” in the margin or in the Additional Information field
  • Employers may accept expired driver’s licenses and/or state IDs that have been extended by a state
  • If an employee presented a receipt from an agency that is now closed due to COVID-19, employees should use any available means to inquire with the agency (i.e., no special allowances are being implemented at this time for employers who must update the I-9 within 90 days of hire)

Form I-9 and E-Verify Guidance During COVID-19 (in a nutshell)

Section 1 Completion (by the employee): no change in process. As is always the case, employers must ensure that new hires complete Section 1 no later than their first day of work for pay.

Section 2 Completion: the Form I-9 must still be completed within 3 days of the employee starting work for pay. However, as previously discussed, employers essentially have two options with regards to how the documents are reviewed:

(1) Avail themselves of DHS’ new “flexible” verification process which involves conducting a virtual review of documents within 3 days of hire, followed by an in-person inspection at a later time

(2) Use an authorized representative to conduct an in-person verification within 3 days of hire, with no further follow-up required

Employers going through door #1 (the new flexible option) have several things to keep in mind:

  • They need to figure out if they can use this option at all – see our detailed analysis of this issue in our prior blog post here
  • They need to obtain, inspect, and retain copies of the Section 2 documents within three business day of hire
  • In addition to completing Section 2, Employers also should enter “COVID-19” in the Additional Information field – note, this part of the USCIS guidance differs slightly from what was published by ICE. The ICE memo implied that employer did not need to write COVID-19 until later when the in-person review occurs
  • A physical inspection must take place, after normal operations resume. The date of the physical inspection should be recorded in the Additional Information field…and, per the USCIS guidance, the annotation should also include the person who conducted the in-person verification. Once again, this requirement was not mentioned in the ICE memo.
  • The USCIS also includes a reassurance for employers using electronic I-9s that do not have the ability to annotate the additional information box. In these situations, employers can simply attach a signed/dated note to the I-9 with the same information.

Employers opting to use a remote agent (door #2) can designate anyone they like to review the original documents in-person with the new hire, and complete Section 2 or Section 3 as applicable. As previously discussed, the remote agent option has several distinct advantages over DHS’ new flexible I-9 arrangement since the I-9 process can be a “one and done” type of operation with no further in-person follow-up or annotation required.

Section 3 Completion: As with Section 2, employers have the same two options: virtual verification or use of a remote agent. If following the virtual process, employers are instructed to write “COVID-19 EXT” in the margin or annotate in the Additional Information field.

Author’s note: I think the inclusion of “EXT” in this context is a bit confusing, as typically EXT is used for situations when a document is being auto-extended (see the discussion on driver’s licenses below).

Expired Driver’s Licenses and/or State IDs: as previously discussed on our blog, the USCIS is allowing employers to accept expired driver’s licenses and/or state IDs as List B documents so long as the document expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19. You should enter the actual expired date in Section 2, and E-Verify (if participating).

E-Verify Processing: regardless of which I-9 verification option is used (virtual or remote agent), employers still need to create a case in E-Verify within 3 days of hire. If case creation is delayed due to COVID-19 precautions, select “Other” from the late reason drop-down list and enter “COVID-19” as the specific reason.

E-Verify TNC Processing: although not mentioned in this latest Q&A, the USCIS had previously announced that they are automatically extending the timeframe to take action to resolve SSA TNCs due to SSA office closures to the public. E-Verify is also extending the timeframe to take action to resolve DHS TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.

Receipts: under longstanding I-9 rules, new hires can choose to present a receipt for a lost, stolen, or damaged document in lieu of the original. The new hire has 90 days from the date of hire to produce the replacement document. While many government agencies are now closed as a result of COVID-19, the USCIS is not providing any specific allowances at this time. Instead they note that employees should use available customer service phone lines, emails to contact customer service, and other online portals to obtain a document if possible. They did note, however, that they may reassess this policy in the future.

Have a question about I-9 and E-Verify processing during the COVID-19 pandemic? Check out these additional resources or contact us here.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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