Better Late Than Never: ICE Announces Another Extension to I-9 Compliance Flexibility

Seyfarth Shaw LLP

Posting early morning on July 20, but dated July 18, Immigration and Customs Enforcement (ICE) confirmed that employers have an additional 30-day extension to the flexibilities in rules related to Form I-9 compliance. This relaxation of the requirement to physically inspect all new hires’ identity and employment eligibility documentation was granted earlier this year, extended in May, and in June. The expiration date for these accommodations is now August 19, 2020.

No Further Extensions on March NOIs 

While the Department of Homeland Security (DHS) extended the virtual I-9 policy, their announcement confirmed that no additional extensions would be granted to employers who were served Notices of Inspection (NOIs) during March 2020 and have been in the process of responding to ICE. We expect that no new NOIs will be issued until late August, but ICE has not confirmed this publicly. 

Expired List B Documents are Still Allowed

The U.S. Citizenship and Immigration Services (USCIS) temporary policy allowing for the acceptance of expired List B documents continues with employers still required to follow up, where necessary, on documents treated as receipts. Per the guidance in the temporary policy, any expired List B document that was not formally extended by the state’s issuing authority should be treated as a receipt.  However within 90 days after DHS terminates this temporary policy, the employee will be required to present a valid, unexpired document to replace the expired one presented when they were initially hired. The employee may also choose to present a different document.

Alternatives to the Virtual I-9 Method and Returning to Business

Employers should consider other options to the virtual policy, sooner rather than later, as it is likely the policy may end before businesses actually return to work. The Authorized Representative model should be considered, and if selected, should be implemented carefully. Additionally, companies that used the virtual option and are already in the process of resuming business must ensure that all employee documents that had been remotely inspected are physically inspected within three days of returning to work. All of these topics were discussed in our previous blog: Still No Word From ICE. Unfortunately, ICE has not yet issued additional information about the logistics of completing Forms I-9, including instances where new documents have been presented or where the person physically inspecting documents is different from the original remote verifier. 

It’s Temporary

ICE has made it clear that the Agency has no interest in allowing for virtual review to continue indefinitely, nor do they intend to waive the in-person review requirement once businesses return to work. Accordingly, employers must consider requesting legislative and policy changes through the Administration and Congress.  

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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