Trick or Treat: I-9 Flexibilities Extended until October 31, 2022

Seyfarth Synopsis: On April 25, ICE announced its 13^th extension, this time for a six-month period (until October 31, 2022), of the I-9 compliance flexibility rules relating to Form I-9. There is no substantive change in this extension of the policy, allowing for the “in-person” exemption (of identity and work authorization document review), benefiting certain employees and offering flexibility for companies that are phasing back in employees. While we are confident that the government is considering a permanent virtual option, we continue to advise employers to work under the assumption that anyone initially verified using the virtual flexibility will be required to conduct an in-person update as employees return to the workplace, especially in cases where identity was not verified (i.e. those that used the fax/email option). 

Lucky #13 - Extension of the COVID I-9 Flexibility

In a thirteenth extension, ending on Halloween 2022, U.S. Immigration and Customs Enforcement (ICE) posted an unprecedented (it’s been a while since I said that word) six (6) month extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities are now extended until October 31, 2022.  The posting on the website is a bit confusing, as it just updates the December 2021 announcement, and includes an alert attached to the top of the page which indicates the new deadline.

ICE’s announcement affirms that employers who are taking COVID-19 related precautions and working in remote or hybrid environments, may continue inspecting I-9 documents virtually for newly hired employees as well as for reverification of work authorizations.  See our prior blog for the guidance and discussion on its forward-facing application, noting that ICE will evaluate a company’s situation “on a case-by-case basis” should a company have used virtual without the workforce being 100% remote from March 20, 2020 to March 31, 2021. Given the confusion and lack of guidance surrounding the directive, we remain optimistic that the government will show leniency for early misunderstandings and misapplications of the original policy.

Treats Before Halloween

Permanent Virtual?

In late October of 2021, near last Halloween, the Department of Homeland Security (DHS) requested input from the public (RFPI) regarding the virtual completion of Forms I-9. DHS sought detailed information from employers as it considered changes to the I-9 process. Following the RFPI, the Fall Regulatory Agenda was released (in December). DHS indicated that there would be a release of a proposed rule on remote I-9 inspection to reduce burdens on employers and employees alike this summer of 2022. That announcement stated, “DHS plans to propose to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers” and was discussed in our prior blog. 

The unprecedented six-month extension makes sense. It likely was a request from the Administration.  In essence, it bridges the gap and provides breathing room for DHS to roll out a proposed rule outlining some sort of  “permanent virtual” I-9 completion option, while simultaneously working with other agencies to finalize and issue wind-down guidance associated with the existing temporary virtual process.  The Seyfarth Compliance practice in conjunction with SHRM, AILA, the US Chamber and others continue to request direction from DHS on these open areas while advocating for a reasonable period in which to effectuate any COVID-19 related I-9 update responsibilities. We also continue to advocate for permanent virtual I-9 since nothing is certain at this point.

Additional requests to DHS include a waiver of the requirement to update the Forms I-9 by inspecting documents in-person where the I-9 was initially completed virtually, but for now employers should continue to count on having to update their existing I-9s.  Similarly, employers should consider use of the Authorized Representative method which serves as a significant time-saver when correctly crafted and implemented carefully, as suggested in a prior blog.  An authorized representative can be any person a company designates to complete and execute the Form I-9 on the company’s behalf. Use of this method should include an associated internal audit process, as it is ultimately the employer held response for any I-9 errors, including discrimination claims.

New Form I-9 Coming Soon

In other news, employers should be aware that DHS published Federal Register notice 87 FR 18377 on March 30 inviting public comments on its proposed extension and revisions to the Form I-9. USCIS is proposing some major changes to the current version, which is set to expire on October 31, 2022 (spooky timing!).  These changes, along with concerns and omissions in the new form proposal, will be discussed in our upcoming blog, subscribe to the Big Immigration Law Blog for timely updates.

Tricks Before Halloween - What Should Employers Be Doing Now?

In the interim, companies should plan accordingly and consider the following:

• Continue tracking all employees that will need to have their I-9s updated upon returning to work in-person or at the end of this Flexibility Policy.
• If you are not tracking, institute a system ASAP to identity anyone affected.
• Update Forms I-9 in-person, wherever possible and safe to do so, recording both the remote inspection information (hopefully previously recorded) and updating the virtual inspection in the Additional Information field on the Form I-9.
• Institute a document copy policy of all identity and work authorization documents, which is required if you are completing virtually, and a best practice otherwise.
• Consider phasing out inspecting documents remotely using mail, fax, or email as there is no verification of identity in this case.
• If applicable, work with your electronic I-9 vendor to report out on virtual I-9 reporting as well as how to compliantly update forms (some vendors are forcing updates to be done on paper, rather than electronically, go figure).
• If applicable, ensure that you are timely running E-Verify queries.
• Do not use the virtual flexibility for any employees that are “permanently” remote, as the policy is only applicable to employees affected by COVID-related issues. Remote employees can complete an I-9 using the Authorized Representative
• Ensure you have a vehicle to ward off the “evil spirits” of identity related issues (i.e. is the person you completed the I-9 for (or interviewed for) remotely the person that is now working for you?).
• Consider phasing out the virtual I-9 process where appropriate and consider other methods.
• Ensure that your Forms I-9s are compliant and your related processes include best practices. ICE has started conducting I-9 inspections.

Ghosts and Goblins including Mandatory Expired List B Updates

With time running short, we have asked that DHS’s U.S. Citizenship and immigration Services (USCIS) reconsider its mandate to update expired List B documents that were not extended by their issuing authorities.  USCIS had previously announced that starting May 1, 2022, employers must only accept unexpired List B documents. USCIS noted that, “[i]f an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022, unless the List B document was auto extended by the issuing authority, making it unexpired when presented.” The tracking of expired list B documents auto-extensions was incredibility difficult to effectuate during COVID-19.  Most companies, including those operating in multiple states, left such reviews to their local I-9 completers who were already exhausted with additional HR duties during COVID-19, especially during the earlier months. Companies found it hard to track and DHS was unable to track individual state and local document extensions. Therefore, USCIS should scrap the requirement to update, and treat these documents as valid identification, without the need to update.

I believe that the burden on employers, as well as the inefficiencies ICE will be faced with during future I-9 inspections, outweighs the small possibilities of a limited number of folks using (and purchasing) expired List B documents to prove identity. Were any nefarious fraudulent document vendors really selling expired documents during COVID-19? In addition, in the case of someone using a friend or family member’s expired ID, an identity verification should ferret that issue out.  Finally, how will ICE be expected to verify whether an expired identity document required an update or not?  As noted, the government was not tracking these state and local extensions. Food for thought folks. While there is no reason to force employers to waste limited time and resources revalidating expired List B documents provided identity and work eligibility were verified at hire, employers must unfortunately consider the current guidance and start to address this requirement in order to ensure there is enough time to update by July 31, 2022. 

The remainder of  2022 promises to be an exciting year for employment eligibility matters.

For questions regarding I-9 compliance, internal immigration assessments, worksite enforcement audits, E-Verify compliance, Department of Labor immigration related wage and hour investigations, general H-1B compliance, and DOJ-IER anti-discrimination matters, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.