COVID-19 and I-9 Compliance

Prior to COVID-19, Immigration practitioners throughout the US were already struggling with the ever-changing immigration policies, rapid escalations in Requests For Evidence (RFE) and increased spikes in denials. Now, the coronavirus has taken a dramatic toll on individuals and businesses across the globe, including an unprecedented impact on immigration.

As businesses begin to reopen, employers should anticipate heightened scrutiny by governmental agencies such as USCIS, ICE, and DOL with respect to immigration policies and requirements. Because COVID-19 has caused high unemployment rates and raised political tensions, these circumstances will most likely lead to greater government focus on hiring practices for employers. The current surge in worksite enforcement is expected to result in an increase of I-9 audits in the fiscal year 2020. Additionally, civil audits are on the upswing, leading to criminal investigations and criminal arrests for employing undocumented workers.

Regardless of whether your company employs foreign nationals, all employers should audit their I-9s now. ICE had initially announced a flexible policy on March 20, 2020, and it was set to expire on May 19, 2020. They have now announced a new extension which allows employers operating remotely to continue to use this flexible I-9 process for new hires until June 18, 2020, providing an additional period of thirty (30) days. This permits employers to continue to use the so-called “flexible” process for completing I-9s remotely for a little while longer as COVID-19 remains a concern.

ICE’s so-called “virtual verification” option allows eligible employers to conduct a remote verification (or reverification) of Section 2 documents remotely (e.g., over video link, fax, or email). Once normal operations resume, all employees who were onboarded remotely must report to their employer within three business days for in-person verification.

To utilize the virtual option, employers must:

  • Have employees working remotely;
  • Inspect Section 2 documents remotely;
  • For new hires, complete section 1 and 2 within 3 days of the employee’s start date;
  • Retain copies of the documents inspected remotely
  • Have written documentation of their remote onboarding and telework policy for each employee
  • Write “COVID-19” in the Additional Information box or Section 3 as applicable
  • Make certain that a physical in-person inspection is performed within 3 days after normal business operations resume, and the I-9 is updated accordingly

If you have any questions about Form I-9 Employment Verification and E-Verify requirements, especially changes during the COVID-19 pandemic, Murray Osorio attorneys are available to assist.

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