As we blogged about here, the Department of Homeland Security has relaxed some of the Form I-9 requirements for all remote workplaces during the COVID-19 pandemic. Following that announcement, DHS released new increased fines for Form I-9 penalties, which we blogged about here. More recently, the United States Citizenship and Immigration Services agency (USCIS) has announced more changes.
In summary, USCIS has announced that employees may present Form I-797 Notice of Action showing approval of their I-765 Application for Employment Authorization as a List C document for Form I-9 compliance "due to the extraordinary and unprecedented COVID-19 public health emergency." According to USCIS, "the production of certain Employment Authorization Documents (Form I-766 EAD) is delayed."
However, USCIS also announced specific (sometimes hyper-technical) restrictions, including that December 1, 2020 is the deadline to reverify employees who presented Form I-797 Notice of Action as a List C document.
Because we can never be sure when ICE might come knocking, it is imperative that employers are prepared. Be diligent and ask: Do you know where your Form I-9's are located? Has the person filling them out ever been trained? Which employees will need to be reverified and when?
If your company uses an electronic Form I-9 platform, be careful and review the specifications with counsel when possible (e.g., is the platform properly sortable, does the platform capture edits and provide a sufficient audit trail?). In our experience, many electronic Form I-9 platforms fall short of full compliance with the regulations and DHS guidance.
Have questions about Form I-9 compliance? The Sessions Firm's I-9 Verified Program can help you through this difficult and unprecedented time. We are here to help!
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