What’s New in the New Year? Initial I-9 Musings & Treasures from 2020

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With a new Administration moving into Washington D.C. amidst tension and confusion, immigration compliance remains top of mind for employers.  I know that because I hear from H.R. leadership, General Counsel’s offices, administrators running small family businesses, and shift managers at local pizza places across the country.  Some companies tell me they continue to “work from home,” some never left the workplace, and others are operating in a hybrid model.  Whatever the industry, wherever the location, and no matter the size, we are witnessing a significant shift in the onboarding process to produce outcomes similar to those achieved in-person; how we complete the Form I-9 is no exception.

The COVID-19 pandemic continues to disrupt technological barriers that prevented remote work in the past. In doing so, it is forcing changes to the onboarding process while simultaneously addressing health and safety concerns. Employers facing these vexing Form I-9 compliance issues and ongoing confusion are hungry for more explicit directives from the government, and in turn, the government is trying to keep pace.  I am hopeful that the new administration, along with the hardworking career government corps, will recognize these challenges and partner with companies as they create effective and safe processes that meet the challenges of 2021, including those hurdles presented in 2020.

Below, we travel back into 2020 in order to flag concerns and frame various I-9 issues for employers, including a slightly updated set of Form I-9 Examples Related to Temporary COVID -19 Policies posted on I-9 Central’s Temporary Policies Related to COVID-19 page, as well as an October 2020 update to the M-775, E-Verify User Manual, concerning Tentative Non Confirmation (TNC) practices.

Newly Discovered Treasures from a Past Year

I-9

Employers have been awaiting clarification on completing in-person I-9s for employees that have returned to work. In our October 21, 2020, blog, Hidden ICE Guidance on Virtual I-9s, we alerted our readers to ICE’s October FAQs. These FAQs addressed questions related to in-person updates to “virtual” Forms I-9, but had not been publicized by ICE. Unfortunately, the guidance contradicted the Form I-9 Examples Related to Temporary COVID-19 Policies[i], initially posted by ICE’s sister agency, U.S. Citizenship and Immigration Service (USCIS) in June of 2020.  We brought this to the attention of DHS and requested clarification.

ICE and USCIS routinely work together and immediately set out to address the inconsistency.   On November 24, USCIS replaced their original examples with new Form I-9 Examples Related to Temporary COVID-19 Policies Now Available – 06/26/2020 .  Not surprisingly (hey, it was 2020 after all), there were problems with this update.

The first problem:  USCIS did not tell anyone about the update. The change made to the document was not disseminated, nor was it outlined, and the date of the posting on the Temporary COVID-19 Policy page remains filed under June 2020 rather than November 2020.  We do not believe that this was an intentional omission on the part of USCIS, but rather an inadvertent oversight in an attempt to keep up with the fast paced COVID-19 landscape.

That said, a review of the I-9 Central and the USCIS website indicates that this issue is not an outlier. There appears to be a practice of updates being made, without posting any form of  notification about the changes. We have also found instances of changes made to the online version of M-274 but that’s a topic for another blog. So, how can employers tell if there’s been a change? If you look at the bottom of the relevant page,  you will see a list reviewed/updated date.  It’s not a perfect solution but it is an indicator that something (not always sure what) has changed.

Figure 1 Source: USCIS.gov

The second problem: the new guidance is still inconsistent with ICE’s FAQs. The new USCIS examples try to reconcile, but fail to do so entirely. Furthermore, the ICE guidance remains posted, with no reference to USCIS, and could be a source of further confusion. Specifically, the ICE October FAQs require employers to complete a new Section 2 when the employer representative who completes the I-9 in-person is different from the employer representative who completed the Section 2 virtually. USCIS guidance at #3 remains unchanged, contradicting ICE’s directive:

“If the person who performed the remote inspection cannot also perform the physical inspection, the person who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field.”

However, USCIS guidance at #6 (where the employee is originally presented an expired List B document and now is updating with an unexpired document) was changed and now states:

 “If the same person performs both the remote and subsequent physical inspections, complete as shown. Note that if a different person performs the physical inspection, that person should write their full name and title, instead of their initials, OR complete a new second page (Section 2) of the Form I-9 and attach that to the (complete) remote inspection Form I-9.”

Here allowing for either the new Section 2 or updating in the Additional Information box makes more sense.  In fact, we urge DHS to broaden the guidance allowing employers to either 1.  complete a new Form I-9[ii] ;  2. complete new Section 2;  OR 3. complete the updated information in the Additional information box.

For now we believe employers should be able to rely on the new USCIS Form I-9 examples or the ICE guidance. In practice, the key here for companies is to be consistent and treat employees the same.  If an internal policy is changed, an employer must ensure it is implemented across the board and memorialized.  We will continue to monitor this issue and provide updated guidance as necessary.

E-Verify

E-Verify requires enrolled employers to take action on Tentative Nonconfirmations (TNCs) within 10 federal government working days. This means that the employee must be notified and complete the referral process as soon as possible, within 10 federal government working days after E-Verify issues the TNC result. Then, within the same 10 day period, the employee must decide whether to contest (take action) or not contest (do not take action) to resolve the TNC.  Starting on November 5, 2020, E-Verify began notifying employers who were not in compliance.  We understand that in most cases, these employers had TNCs open for over one year.

Having TNC cases that remain open and without action for an extended period may suggest that your users are either not notifying employees timely, or are not referring TNC cases to the Social Security Administration or Department of Homeland Security when the employee chooses to take action to resolve the TNC, or are not closing the case (and presumably terminating the employee) when the employee chooses not to contest. Noncompliance may lead to actions, up to and including termination of your E-Verify account.

USCIS did an excellent job of notifying employers about this 10 day requirement which was part of the program guidance years ago, but only recently revived as a mandate. In fact, the M-775 Section 3.3 TENTATIVE NONCONFIRMATION (TNC) was updated on October 5, 2020 with these new instructions. The Manual, however, still reflects a “Current as of April, 2018” date. This is troublesome as employers cannot be expected to hunt down changes to process, policy or other guidance in manuals, instructions or the M-274.

Figure 2 Source USCIS.gov

Until USCIS offers some tracking mechanism, employers will need to rely on identifying changes by looking at the bottom right hand corner of the web page combined with a subscription to internet archive Wayback Machine, or you can subscribe to our blog where we will do our best to keep you updated. I see my 2021 morning routine taking shape as follows: shower, makeup- depending on who my Zoom calls are with, coffee, review of the I-9 Central for any discreet changes, more coffee.

Virtual I-9 Flexibility 

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) continue to offer flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.  We discussed the temporary guidance set to expire on December 31, 2020, in previous blogs; however, due to the ongoing precautions related to COVID-19, DHS has extended this policy an additional 30 days until January 31, 2021.

DHS also reminded employers that the ability to use the provision only applies to employers and workplaces that are operating remotely. This last extension directed employers to review the original news release for more information on obtaining, remotely inspecting, and retaining copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

Another USCIS temporary policy, issued on May 1, 2020, allows for expired List B identity documents to be used to complete the Form I-9. While the policy is welcomed, it is burdensome for employers who are required to track state Motor Vehicle Administrations or Department of Motor Vehicle’s websites to determine which states have auto-extended the expiration dates of state IDs and driver’s licenses. Whether or not the document is auto-extended dictates not only how the document should be recorded on the I-9 but whether the document is treated as a receipt, requiring reverification. For large employers, this task is proving close to impossible. Accordingly, DHS has been asked to reconsider their guidance and offer a more business-friendly solution.

Who is Going to Define Normal Business Operations? 

The December DHS 23, 2020, notice extending virtual I-9s, also reminds employers they “must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.” While we are still hopeful that DHS will allow companies, not the government, to define when “normal operations” resume, we are uncertain where DHS will land on this.

Seyfarth, along with other groups, is working hard to ensure ample notice and time is provided to employers to update the affected I-9s. In the interim, businesses should memorialize remote work decisions, including “phase-ins” and other timelines, individual employee anomalies, and any adopted protocols relating to the timing of returning to work, to ease the burden of completing I-9s in person. In light of the possibility of a short runway being associated with this follow-up for in-person I-9s, another practical consideration is phasing out virtual review whenever possible and considering using the Authorized Representative (“Friends & Family”) method to complete I-9s.

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For questions regarding these policies, I-9 compliance, defending employers involved in worksite enforcement audits or actions, E-Verify compliance, LCA, and H-1B compliance and DOJ anti-discrimination matters, contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.

[i] Original posting courtesy of the Wayback Machine. See, https://web.archive.org

[ii] Many electronic I-9 vendors cannot offer the completion of a Section 2 only, but rather force the completion of an entirely new I-9.

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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