On Friday, March 20, 2020, Immigration and Customs Enforcement (ICE) issued temporary guidance allowing for flexibility in I-9 document verification. Please carefully read the official press release here.
“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.”
This means that you have the option to review copies of Section 2 documents or you may review them over video. The 3-day rule still applies. Once normal operations resume, you must review the documents in person, in their original form, within 3 days, just like the good ol’ days, even if you already saw copies.
Keep in mind that this rule applies ONLY if you have instituted a fully remote workforce. If there are still employees present at a worksite, this rule does not apply. Remember that an employer may appoint any authorized representative to complete Section 2 if the “regular” Section 2 completer is not at that work location.
You’re also still required to create E-Verify cases within 3 days, even with only having reviewed copies of documents. According to E-Verify, “if case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.”
Don’t forget that employers are still fully liable for I-9 compliance, so keep track of what you do. Write memos, take notes, mark up the I-9 (as indicated by ICE, using that “additional information” field).
These provisions are in effect for 60 days from the date of the notice (March 20, 2020) or three business days after the National Emergency ends, whichever is sooner.
Similarly, E-Verify issued guidance on March 21, 2020, related to Tentative Non-Confirmations (TNCs). Review the guidance here.
If you receive a TNC for your employee, you must still notify the employee ASAP so they can decide whether they will take action. The change is that E-Verify has extended the timeline for responding to the TNC because of SSA understaffing or even lack of staffing entirely.
As always, there will be unanticipated circumstances, so let’s use the tools we have available to make the best decisions for all! Please reach out to me with any questions.