2020 USCIS I-9 Guidance Round-Up

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Dickinson Wright

As a result of the ongoing COVID-19 global pandemic, employees continue to work from home in record numbers, and employers continue to scramble to adjust their business operations and employee relations policies to accommodate the so-called “new normal”. Following-up on our earlier news about the US Department of Homeland Security’s (DHS) odd relaxation of certain Form I-9 rules, we felt this would be a good time to remind companies of several other aspects of previously routine I-9 compliance, which have been impacted during this unprecedented year.

To that end, here below are some of the more noteworthy I-9 developments, which companies should be monitoring closely:

  • Given the shock of what was happening in mid-March, the year started out with a fairly modest, temporary grace period for employers to complete in-person I-9 document reviews for new hires. All other I-9 rules and requirements remained in force, despite the rapidly changing work landscape. If you are not yet familiar with the accommodations given to employers in late-March, you can review them here. After several extensions, those rules are still active today (albeit set to expire on November 19th). However, note carefully the very limited definition of what constitutes a business “operating remotely”.
  • In a similar vein, the US Citizenship & Immigration Services (USCIS) confirmed in March that its E-Verify system for I-9 quality control would continue operating largely unchanged, but with a few extended deadlines for employers to perform certain actions in the system. Given the number of human resource managers already working remotely, and the fact that E-Verify is entirely a web-based online system, this did not seem to be a major problem for employers, assuming they could juggle the more tricky I-9 creation rules at the time of hire.
  • Throughout the summer, the DHS continued to almost reluctantly extend the grace periods for employers to perform in-person interactions with new employees completing their I-9s. It also provided some more specific guidance for particular challenges which were vexing employers struggling to maintain I-9 compliance. Those included what to do when a new employee’s identity document has expired, but the relevant state agency issuing the renewal/replacement was indefinitely shuttered; and, much to the relief of understandably confused human resource professionals, some real-world, practical examples for how employers should annotate their I-9s, when using all of these new, temporary policies.
  • Most recently, the USCIS launched a public information campaign last month reminding employers how to properly handle what are called “Tentative Nonconfirmations” (or TNCs) generated from its E-Verify system. TNCs generally happen when there is a data mismatch between the USCIS’ records and the information an employer enters into E-Verify from its I-9 form. TNCs can be an innocuous as a name typo error, or can signal a serious problem with the employee’s US work authorization. Handling TNC situations correctly can often be tricky, to avoid accidentally harming a lawful US worker, or carelessly not following-up on a potential lack of lawful status to employ somebody.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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