COVID-19 has created an evolving immigration environment. It remains essential for employers to maintain immigration compliance during the COVID-19 emergency and to take the steps necessary to maintain the nonimmigrant status and work authorization of their foreign national employees. In addition, now that businesses and organizations are beginning to reopen pursuant to government guidelines, employers are advised to keep abreast of the latest legal developments and various obligations they may have over the next few months as we slowly return to our workplaces. Understanding how COVID-19 affects the immigration environment can be overwhelming, but having a trusted immigration attorney on your side can help alleviate any stress.
On March 20, 2020, the Department of Homeland Security (DHS) announced its “Flexibility in Completing Form I-9.” As a result of this policy change, the Form I-9 physical presence requirements were deferred for employers for 60 days or within three business days after termination of the COVID-19 national emergency, whichever comes first. This change in policy has been extended through March 31st, 2021.
Under the current ‘Flexibility’, employers and workplaces that are operating remotely, Section 1 of Form I-9 must still be completed on or before the employee’s start date. However, Employers are permitted to inspect the employee’s documents remotely (e.g., fax or email, etc.) and obtain, inspect and retain copies of the documents within three business days in order to complete Section 2 of Form I-9.
Additionally, during the Form I-9 verification process, employees might provide List B identification documents (e.g., driver’s license, state identification card) that expired during the pandemic and were not renewed due to the closures of state and local governmental agencies. List B documents that expired on or after March 1, 2020, and were not otherwise extended by the issuing authority may be treated the same as if the employee presented a valid receipt for an acceptable List B document for Form I-9 purposes. If you have questions on the verification process or how COVID-19 impacts immigration, it can be beneficial to speak to a knowledgeable attorney.
With the expiration of the Flexibility in Completing Form I-9 on April 1st, employers should start making plans to review original documents in person by an employer or authorized representative and update existing I-9s completed through remote review. Employers who are able to physically inspect documents in front of an employee should enter “COVID-19” as the reason for the physical inspection delay in the Additional Information field in Section 2 of Form I-9. Physical inspection must occur within three business days once normal operations resume.
Once the documents have been physically inspected, employers should add “documents physically examined” with the date of inspection to the “Additional Information” field in Section 2 on Form I-9 or in Section 3 if the employee is being reverified or rehired.
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