Department of Homeland Security Addresses Ongoing COVID-19 Issues with Temporary Policies

Dickinson, Mackaman, Tyler & Hagen, P.C.
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In response to the COVID-19 pandemic the Department of Homeland Security (DHS) issued several announcements regarding changes in enforcement of Form I-9 regulations and the E-Verify system. Most of the announcements were made by news release with the exception of one temporary final rule relating to temporary agricultural workers with H2-A visas. The announcements have not replaced existing regulations which remain in effect, but have altered how Form I-9 may be completed due to effects of COVID-19 on both employers and government functions.

Extended Timeframe for Resolving E-Verify Tentative Nonconfirmations

Employers utilizing E-Verify still must create a case in the E-Verify system within three (3) business days from the date of hire. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

Temporary Flexibility of Form I-9 Requirements Related to COVID-19 for Remote Workplaces

DHS announced in a news release relaxation of enforcement rules for employers with employees taking physical proximity precautions due to COVID-19. The release noted, “If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.” The discretion was due to expire on May 19, but was extended for an additional 30 days.

In the release DHS stated that employers meeting the criteria will not be required to physically inspect documents provided by incoming employees to verify identity in person as long as precautions remain in place. Employers will have to review the documents previously reviewed remotely within three days of the first day of work. Employers should enter “COVID-19” as the reason for inspection delay in the additional information portion of Section 2 of Form I-9.

Once normal DHS operations resume, which will be announced on the DHS website, all new employees will be required to report to the employer within three business days to allow the previously provided documents to be reviewed. The news release cautioned, “Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.”

Temporary Acceptance of Expired List B Documents for Form I-9

Due to stay-at-home orders across the country interfering with renewal of driver’s licenses and other documents commonly used to verify identity of employees on Form I-9, DHS announced that if an employee provides a List B document that expired on or after March 1, 2020may be used to temporarily document the identity of the employee. The employee will have to provide a non-expired List B document within ninety (90) days of the termination of the temporary policy.

Employers temporarily accepting an expired List B document are instructed to list “COVID-19 EXT” in the additional information field. E-Verify employers should also use the expired document to submit the E-Verify case within three (3) days of the date of hire. When the employee later presents an unexpired document the employer should (1) record the number and other required document information from the actual document presented and (2) initial and date the change.

Temporary Final Rule Provides Extension of Stay for Some Non-Immigrant Agricultural Workers

DHS issued a temporary final rule to amend certain H-2A requirements to help U.S. agricultural employers avoid disruptions in lawful agricultural-related employment during the COVID-19 public health emergency. The temporary final rule expires on August 18, 2020. The rule only applies if USCIS received the new employer’s extension of stay H-2A petition on or after March 1, and it remains pending as of April 20, or USCIS receives the H-2A petition between April 20 and August 18.

Under the temporary final rule, a new, non-E-Verify employer may employ the H-2A worker while the extension of petition is pending, (1) for up to forty-five (45) days from the date on the employee’s receipt notice, (2) until the USCIS denies the petition, or (3) when the petition is withdrawn, whichever occurs first. To complete Form I-9 Section 2 in this instance the employer should enter under List A:

  • The unexpired foreign passport information;
  • Unexpired Form I-94 information; and
  • “45-Day Ext.” and the date Form I-129 was submitted to USCIS in the Additional Information field

More information for employers using H-2A employees can be found on the USCIS H-2A Temporary Agricultural Workers webpage.

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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