In support of employers’ attempts to comply with Form I-9 and E-Verify requirements amid the disruption of normal business operations caused by COVID-19 precautions, the Department of Homeland Security (“DHS”) is allowing some flexibility when compliance is complicated due to public and private office closures. It is important to note, however, that an employer’s obligation for timely completion of the Form I-9 and E-Verify case creation remain unchanged.
Form I-9 Accommodations Include:
- Permitting the use of a driver’s license that has expired but which has automatically been renewed by a DMV office as an acceptable list B document. (Eligibility for extension and extension periods vary by state).
- For qualifying employers only, DHS has provided a deferral of the employer’s requirement to review original copies of documents in order to complete Section 2 while the employee is physically present with the employer representative reviewing the original documents. Instead, qualifying employers may inspect and retain copies of original documents in order to complete the employer’s review of identity and work authorization documents. This accommodation is only permitted for employers and workplaces that are operating remotely. Under these circumstances, employees must report to their employers within three business days following resumption of normal business operations for in-person verification of the original documents. This accommodation is valid until June 19, 2020 unless extended by DHS.
Further instructions for completion of the Form I-9 with these accommodations is provided in the embedded links.
For employers who participate in E-Verify, public and private office closures can also result in delays in E-Verify case creation and an employee’s ability to reach out to the Social Security Administration (“SSA”) and/or DHS to resolve Tentative Non-Confirmation (“TNC”) results, which may be more frequent due to the use of allowable expired documents.
Employers who participate in E-Verify are still required to create an E-Verify case within three business days following the date of hire. If case creation is delayed due to the employer’s office closure, at the time of case entry the employer should select “Other” as the reason for the late entry in E-Verify and enter “COVID-19” as the reason.
Upon receipt of a TNC, employers must still notify the employee as soon as possible. Normally, employees who wish to contest the TNC must reach out to SSA and/or DHS to resolve the TNC within eight business days. However, due public and private office closures caused by the current national emergency, E-Verify has automatically extended the timeframe to resolve TNCs indefinitely. Employers may not take any adverse employment action while the case is in “interim case status”.
It is likely that we will receive more information on timing for resolutions when more offices begin to open and normal operations resume.
Please contact your Maggio Kattar attorney with any questions you may have.