ICE Stays the Course and Extends I-9 Flexibility

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On September 15, 2020, Immigration and Customs Enforcement (ICE) announced that employers have an additional 60-day extension to the flexibilities in rules related to Form I-9 completion.  This extension relates to the relaxation of the requirement to defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation.  Initially granted in March, ICE has issued several extensions, with the latest one now set to expire on November 19, 2020.  ICE previously granted 30-day extensions, but likely offered this longer time frame due to the ongoing COVID-19 pandemic.

This flexibility has allowed employers, whose operations (or particular sites) remain shuttered to review identity and work authorization documents virtually, rather than in-person as required under the USCIS Form I-9 instructions.  It’s critical to remember that companies availing themselves of this process have only a temporary reprieve.  The ICE guidance mandates that the business then conduct a physical inspection of the documents once “normal business operations resume.”  The government has not explicitly defined “normal operations,” but in liaising with ICE it has become apparent that they understand that returning to work (RTW) will be complicated. The resumption of normal operations will vary widely among industries, business sectors, and the incidence of COVID-19 diagnoses.  The definition of “normal operations” will undoubtedly vary as the new normal begins to take shape. As discussed in our prior blog post, ICE Extends Virtual I-9 Flexibility for 30 Days: Announcement Does Not Address Increasing Employer Questions,  best practice dictates that companies should memorialize RTW guidance as part of an historical record, outlining the specifics of RTW process and policies.  This can be maintained with the “written documentation of their remote onboarding and telework policy for each employee” required by ICE pursuant to the original announcement.  Individual Forms I-9 may also need to be annotated with “audit notes” explaining any anomalies in individual situations.

After the ICE extension was announced, US Citizenship and Immigration Services (USCIS) reminded employers that E-Verify participants who choose the remote, a.k.a. virtual, inspection option should continue to follow current guidance and create cases in E-Verify for their new hires within three business days from the date of hire.

Our earlier blog post, The 2020 Summer Defrost Continues: ICE Extends I-9 Flexibility, provides additional information and guidance on the flexibilities and what they mean to employers, including virtual I-9 completion dates, physical inspection dates, the use of an authorized agent, and the allowance attached to List B expired documents.  The USCIS Temporary COVID policies align with the extension of ICE’s guidance, including the ability for employees to present expired List B documents as proof of identity.  Our blog outlines how to record expired List B documents on the Form I-9, as well as the necessary follow up steps required in situations where the expired List B document presented is not formally extended by the state’s issuing authority.[1]  In this case, the expired document is treated as a receipt. These “receipts” must be updated within ninety (90) days after ICE terminates the temporary I-9 policy, now scheduled to end on November 19.  Thus, unless the ICE guidance is extended further, COVID List B receipts will now need to be updated, ninety days from November 19 — or February 17, 2021.  At that time, employees will be required to present a valid, unexpired document to replace the expired one recorded at hire or reverification.  USCIS notes that the employee has their choice of documents to present at that time.

[1] For expired List B documents that had their expiration dates officially extended by the state’s issuing authority, these documents should be accepted as unexpired List B documents and do NOT need to be updated.

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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