COVID-19: DHS Announces Flexibility in Requirements Related to Form I-9 Verification

On Friday, DHS announced “flexibility in requirements related to Form I-9 verification.”  Under the relaxed requirements, “employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence.”  Instead, the documents may be reviewed remotely, and physically review the documents within three days after normal operations resume.  Employers should also enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field, once physical inspection takes place.

These relaxed requirements only apply to employers and workplaces that are operating remotely. “If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.” And, “if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.”   An employer can designate anyone to complete and sign Form I-9 on their behalf.Here’s a link to the announcement:

USCIS Publishes New Version of Employment Eligibility Form (Form I-9)

By Martha J. Zackin

On Jan. 31, 2020, the U.S. Citizenship and Immigration Services (USCIS) published a new version of Form I-9: Employment Eligibility Verification.  Although employers can and should begin using the new Form I-9 immediately, the old Form I-9 will not become obsolete until April 30, 2020.

Background.  The law requires employers, certain agricultural recruiters and referrers for a fee (all referred to as “employers”) must verify the identity and employment authorization of each individual they hire for employment in the United States on Form I-9, Employment Eligibility Verification.

As described in a notice published by USCIS, Form I-9 collects identifying information about the employee (and preparer or translator if used), and requires the employee to attest to whether he or she is a U.S. citizen, noncitizen national, lawful permanent resident, or alien authorized to work in the United States.  Form I-9 also collects identifying information about the employer and information regarding the employee’s identity and employment authorization. The employee must present original documentation evidencing his or her identity and employment authorization, which the employer must review.

Employers must maintain Forms I-9 for as long as an individual works for the employer and for the later of three years after the employee’s date of hire or one year after the date employment ends.  Various government agencies, including the Department of Homeland Security, the Immigration Rights Section in the Department of Justice’s Civil Rights Division, and the Department of Labor, have right to inspect an employer’s Forms I-9.  An employer’s failure to ensure proper completion and retention of Forms I-9 may subject the employer to civil money penalties, and, in some cases, criminal penalties.

Changes to Form I-9.  The paper version of the new Form I-9 has not changed, but the electronic version has been modified, as follows:

  • Added Eswatini and North Macedonia to the Country of Issuance and foreign passport issuing authority fields, to reflect these countries’ recent name changes
  • Clarified who can act as an authorized representative on behalf of an employer
  • Updated USCIS website addresses
  • Provided acceptable document clarifications
  • Updated the process for requesting the paper Form I-9
  • Updated the DHS Privacy Notice

As always, please reach out to your regular employment lawyer with questions.

Professional Employer Organization Fined Near Maximum For I-9 Paperwork Violations

By Martha J. Zackin

Recently, an administrative law judge upheld a finding by the US Immigration and Customs Enforcement agency (ICE) that Employer Solutions Staffing Group II, LLC (ESSG), a Minnesota-based PEO focused on providing administrative and payroll functions to staffing companies, had violated I-9 regulations by making false attestations on 242 I-9 forms.  The ALJ also upheld the fine of $227,251.75 imposed by ICE for the violations.  A copy of the case may be found here.

In this case – and, perhaps, in other workforces challenged by the realities of remote workers – ESSG had local representatives review identity and eligibility requirement documents and affirm the documents’ authenticity.  These local representatives also sent photocopies of the documents presented to ESSG, for ESSG’s review.  Based on the representatives’ affirmations and review of the photocopied documents, ESSG personnel completed and signed off on Section 2 of I-9 forms relating to newly-hired employees.

The problem is this: by signing on Section 2, the person signing is attesting “under penalty of perjury … that [he or she has] examined the document(s) presented by” the subject employee.  There is no provision within the applicable law or regulations that authorizes an employer to examine photocopies of documents, or to delegate the obligation to conduct an in-person inspection of employee verification documents.  An employer may delegate this obligation to an authorized representative, however, if the employer also delegates to the same authorized representative the obligation to attest to the documents’ authenticity.  In other words, the person signing off on completed I-9 forms must be the same person who reviews the original (not photocopied) documents, and certifies that the documents appear to be genuine and relate to the employee named.

This case is important, and stands for the proposition that the only correct procedure for verifying employee identity and authorization to work in the United States is by in-person inspection of original documents in the presence of the subject employee, with such inspection made by the employer representative attesting to the documents’ authenticity.   In other words, no Skype or other technology will suffice.