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I-9 Flexibility Extended an Additional 30 Days

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On August 19, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced another extension of their increased flexibility with I-9 compliance in response to COVID-19. Originally announced at the end of March, the guidance, which was set to expire on August 18, will now run through September 19. 

Employers Affected 

The increased I-9 flexibility guidance only applies to workplaces that are operating remotely and allows these businesses to perform a virtual inspection of documents via video call, email, or fax rather than the traditional in-person document review. Employers should take care to follow the updated DHS recommendations for virtually processing I-9s that were released when the guidance was extended in July; details can be found in our blawg, Temporary COVID-19 Form I-9 Policies Continue
It’s important to note that the extension only applies to employers operating entirely remotely. If a claim to an exception is nuanced—for example, the executive team is working on-site but the support staff is working virtually—it’s important to discuss with counsel before taking any I-9 action. 

Temporary Flexibility for Certain I-9 Requirements  

The United States Citizenship and Immigration Service (USCIS) also announced that employers are permitted to accept Form I-797 Notice of Action showing approval of an Employment Authorization Document (EAD) (Form I-765) as a List C employment authorization document for Form I-9 compliance. This change is the result of a delay in the production of certain Employment Authorization Documents (Form I-766, EAD). 
Important takeaways include: 
  • Form I-797 is acceptable to show approval of an EAD application—as a List C document—between December 1, 2019, and August 20, 2020 
  • Employers must re-verify employees who use Form I-797 as a List C document by December 1, 2020 
  • Form I-797 doesn’t prove identity and cannot serve as a List A or List B document 
USCIS is encouraging employers to accept new EADs from employees as soon as they receive them in advance of the December 1 deadline. 

I-9 Uncertainty 

There is a great deal of flux in I-9 compliance at the moment, making long-term planning difficult. Both DHS and ICE encourage employers to monitor their websites for updates about extensions and the resumption of normal operations. This leaves open the possibility of increased I-9 flexibility ending abruptly. It’s also just as likely that the guidance will be extended again on September 19, as it has already been multiple times. 

When the guidance ends and “normal” business operations resume, employers will have just three days to make a physical inspection of documents and DHS and ICE have given no indication that they will relax their timelines. This makes it vital that employers have a plan in place for resuming “regular” operations. 

GoffWilson Immigration Law 

GoffWilson has long been a leader in I-9 compliance—routinely holding seminars and training along with performing rigorous company audits. If you have a question about how your business should proceed to process I-9s in the current environment, or would like to develop a strategy for the reinstitution of pre-COVID I-9 compliance, we can help. Contact GoffWilson today—immigration isn’t just what we do, it’s our passion!
Filed under:Form I-9 Compliance, Immigration Law