Temporary Policies Related to COVID-19

05/21/20

Form I-9 Completion by Employers of Certain H-2B Nonimmigrants Permitted to Start Work Because of Temporary Rules in Effect Due to the COVID-19 National Emergency

On May 12, the Department of Homeland Security published a temporary final rule to change certain H-2B requirements to help secure the U.S. food supply chain and reduce the economic impact of the coronavirus (COVID-19) public health emergency on H-2B employers. The temporary flexibilities are available through Sept. 11, 2020.

The temporary final rule allows employers that have properly filed H-2B extension of stay petitions and Form ATT-H2B, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Essential to the U.S. Food Supply Chain (PDF) between certain dates to begin employing certain H-2B workers while USCIS adjudicates their petition. The workers must currently be in H-2B status but working for a different employer. If so, a new employer may begin employing the H-2B workers on or after the date that USCIS receives the extension of stay petition (as stated on Form I-797, Notice of Action, receipt notice) or the date USCIS acknowledges in writing receipt of a properly filed attestation, Form ATT-H2B but no earlier than the start date of employment listed on the H-2B petition.

The temporary rule applies if USCIS received the new employer’s extension of stay H-2B petition on or after March 1, and it remains pending as of May 14, or USCIS receives the H-2B petition between May 14 and Sept. 11, 2020. In both cases, USCIS must also receive a Form ATT-H2B

Under this temporary final rule, the new employer may employ the H-2B worker while the extension of stay petition is pending, for a period not to exceed 60 days starting from the:

  • Received Date on Form I-797 (Notice of Action) acknowledging receipt of the petition requesting an extension of stay, which includes the attestation (Form ATT-H2B
  • Date USCIS acknowledges in writing receipt of the properly filed attestation (Form ATT-H2B) submitted while the H-2B petition is pending; or
  • Start date of employment if the start date of employment indicated in the H-2B petition occurs after the filing.

The H-2B employee’s unexpired Form I-94, Arrival/Departure Record, indicating his or her H-2B status, along with the employee’s foreign passport, qualify as a Form I-9 List A document.

To complete Section 2, you, the new employer, should enter under List A:

  • The unexpired foreign passport information;
  • Unexpired Form I-94 information; and
  • In the Additional Information field, “60-Day Ext.” and the date you submitted the extension of stay H-2B petition (Form I-129, Petition for a Nonimmigrant Worker) to USCIS or the date you submitted Form ATT-H2B) if your petition was filed on or after March 1, 2020, and is still pending on May 14, 2020.

If USCIS denies the new petition, or if you withdraw the new petition before the 60-day period expires, USCIS will automatically terminate the H-2B worker’s employment authorization within 15 calendar days of its denial decision or the withdrawal request. You must reverify the employee’s employment authorization in Section 3 by the end of the 60-day period described above or once you receive a decision on the H-2B petition, whichever comes first. If your petition is denied or withdrawn, count 15 days from the date of the denial or withdrawal request for the date the employee’s employment authorization expires.

Employers of H-2B workers continuing employment with the same employer should continue to follow current Form I-9 guidance provided in the M-274, Handbook for Employers - Section 6.7

For more information see USCIS H-2B Temporary Non-Agricultural Workers page.

05/15/20

Form I-9 Requirements Flexibility Extended for 30 Days

On March 20, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19.

This temporary guidance was set to expire May 19. Because of ongoing precautions related to COVID-19, DHS has extended this policy for an additional 30 days.

This provision only applies to employers and workplaces that are operating remotely. See the original news release for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

Employers must monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. 

05/1/20

Form I-9 Completion by Non-E-Verify Agricultural Employers of Certain H-2A Nonimmigrants Permitted to Start Work Because of Temporary Rules in Effect Due to the COVID-19 National Emergency

On April 20, the Department of Homeland Security published a temporary final rule to amend certain H-2A requirements to help U.S. agricultural employers avoid disruptions in lawful agricultural-related employment during the coronavirus (COVID-19) public health emergency. The temporary final rule expires on August 18, 2020.

The temporary final rule allows non-E-Verify employers that have properly filed H-2A extension of stay petitions between certain dates for workers who are currently in H-2A status but working for a different employer to begin employing such H-2A workers on or after the date that USCIS receives the extension of stay petition (as stated on the Form I-797 receipt notice) but no earlier than the start date of employment listed on the H-2A petition.

The temporary rule applies if:

USCIS received the new employer’s extension of stay H-2A petition on or after March 1, and it remains pending as of April 20 (the effective date of the rule), or USCIS receives the H-2A petition between April 20 and Aug. 18.

Under this temporary final rule, you, the new, non-E-Verify employer may employ the H-2A worker while the extension petition is pending, for a period not to exceed 45 days starting from the date of the receipt notice, or until USCIS denies your petition or you withdraw the petition, whichever comes first. The H-2A employee’s unexpired Form I-94, Arrival/Departure Record, indicating his or her H-2A status, along with the employee’s foreign passport, qualify as a Form I-9 List A document.

To complete Section 2, you should enter under List A:

  • The unexpired foreign passport information;
  • Unexpired Form I-94 information; and
  • “45-Day Ext.” and the date you submitted Form I-129 to USCIS in the Additional Information field.

If USCIS denies the new petition, or if you withdraw the new petition before the 45-day period expires, USCIS will automatically terminate the H-2A worker’s employment authorization within 15 calendar days of its denial decision or the withdrawal request. You must reverify the employee’s employment authorization in Section 3 either by the end of the 45-day period from the date USCIS receives your Form I-129 or once you receive a decision on the H-2A petition, whichever comes first. If your petition is denied or withdrawn, count 15 days from the date of the denial or withdrawal request for the date the employee’s employment authorization expires. Employers of H-2A workers continuing employment with the same employer or with a new employer that is enrolled in E-Verify should continue to follow current Form I-9 guidance provided in the M-274, Handbook for Employers - Section 6.6.

For more information see USCIS H-2A temporary agricultural workers page.

05/1/20

COVID-19 Temporary Policy for List B Identity Documents

Because many areas are under stay-at-home orders due to COVID-19 and some online renewal services have restrictions, employees may experience challenges renewing a state driver’s license, a state ID card, or other Form I-9, Employment Eligibility Verification, List B identity document. Considering these circumstances, DHS is issuing a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification.

Beginning on May 1, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. 

When your employee provides an acceptable expired List B document that has not been extended by the issuing authority you should:

  • Record the document information in Section 2 under List B, as applicable; and,
  • Enter the word “COVID-19” in the Additional Information Field.

Within 90 days after DHS’s termination of this temporary policy, the employee will be required to present a valid unexpired document to replace the expired document presented when they were initially hired. 

Note:  It is best if the employee can present the replacement of the actual document that was expired, but if necessary, the employee may choose to present a different List A or List B document or documents and record the new document information in the Additional Information Field. 

When the employee later presents an unexpired document, you should:

  • In the Section 2 Additional Information field:
    • Record the number and other required document information from the actual document presented;
    • Initial and date the change.

Procedure for List B Documents extended by an Issuing Authority

If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date due to COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority. 

When your employee provides an acceptable expired List B document that has been extended by the issuing authority you should:

  • Enter the document’s expiration date in Section 2; and,
  • Enter “COVID-19 EXT” in the Additional Information Field.

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents.  Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles’ website. 

Note:  For extended documents, the employee is not required to later present a valid unexpired List B document. 

E-Verify participating employers should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire.

DHS continues to monitor the ongoing COVID-19 national emergency and will provide updated guidance as needed. 

04/3/20

Questions & Answers (Q&A) related to Temporary Policies for Form I-9 and E-Verify

The Q&A below relate to the March 20, 2020, DHS Immigration and Customs Enforcement (ICE) announcement concerning flexibility in requirements related to Form I-9, Employment Eligibility Verification, compliance for employers and employees taking physical proximity precautions due to COVID-19.

Form I-9 Requirements Questions and Answers

Can you provide an overview of changes to Form I-9 requirements due to COVID-19 and also explain what is staying the same?

A. Yes, here is an overview:

  • The employee completes Section 1 no later than the first day of employment.

There is no change to current requirements.

  • The employer completes Section 2 within three business days of their employee’s first day of employment.

There is no change to current requirements for employees who are physically present at a work location.

Employers and workplaces that are operating remotely may follow the DHS news release that announced flexibility in requirements related to Form I-9.

If employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter “COVID-19” in the Additional Information field. A physical inspection must take place, after normal operations resume. The date of the physical inspection and who conducted it, should also be recorded in the Additional Information field.

As a reminder, the employer may designate an authorized representative to complete Section 2 or 3 of Form I-9 on behalf of the company, including personnel officers, foremen, agents or notary public. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative completes Form I-9 on behalf of the employer, they are still liable for any violations in connection with the form or the verification process.

  • The employer physically examines their employee’s documents with their employee present.

 

  • The employer completes Section 3, Reverification.

DHS has announced changes to these procedures; the ability to inspect documents remotely for some employers applies to reverification as well. See the March 20 news release for details on remote inspection. 

If you are updating Section 3, write “COVID-19 EXT” in the margin or annotate in the additional information field.

There is no change to current requirements for employees physically present at a work location.

Will the three-day requirement for completing a Form I-9 be relaxed or extended?

No

Once operations are back to normal, what is the responsibility for employers?

The guidance states that once normal operations are commenced, Section 2 should be completed by physically examining both the employee and the work authorization documents, whoever does this, should sign Section 2.

Many states are extending the expiration date of state IDs and/or driver’s licenses. How should the extension be documented in Section 2?

If the employee’s state ID or driver’s license expired on or after March 1, 2020, and the document expiration date has been extended by their state due to COVID-19, then it is acceptable as a List B document for Form I-9. Enter the document’s expiration date in Section 2 and enter “COVID-19 EXT” in the Additional Information field. Employers may also attach a copy of the state motor vehicle department’s webpage or other notice indicating that their documents have been extended.

Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicle’s website.

The DHS March 20 announcement allows for remote inspection of documents and providing a “COVID-19” annotation in the Section 2 “Additional Information” field. How should employers handle this annotation if they use an electronic Form I-9 that does not have this field?

The employer can physically or electronically attach a note to an employee’s Form I-9 providing the information that ICE guidance has requested in the Form I-9 “Additional Information” field. Any notation should clearly explain the situation and be signed and dated by the employer.

In the DHS March 20 announcement, the option for remote inspection only applies to remote workers. What if I have employees working both remotely and reporting in person to work?

The current DHS guidance allows for flexibility only when completing a Form I-9 for a new employee that is only working remotely, but as stated in paragraph 5 of the DHS news release, “...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.”

If an employee presented a receipt from an agency that is now closed due to COVID-19, how should the employer proceed after the 90 days if the document has not been received?

Although many federal and state agencies are closed to the public, internal operations continue. If available, employees should use available customer service phone lines, emails to contact customer service, and other online portals federal and state agencies may have available.

This is an ongoing issue. DHS will reassess this policy if necessary.

My company’s human resources professional who examines documents presented by employees for Form I-9 completion is a remote employee due to COVID-19. How can we complete Form I-9?

You may designate an authorized representative to fill out Forms I-9 on behalf of your company, including personnel officers, foremen, agents or notary public. The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If an authorized representative fills out Form I-9 on your behalf, you are still liable for any violations in connection with the form or the verification process.

When completing Form I-9, you or an authorized representative must physically examine each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. If the authorized representative refuses to complete Form I-9 (including providing a signature) another authorized representative may be selected. DHS does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. If you hire a notary public, the notary public is acting as an authorized representative of you, not as a notary. The notary public must perform the same required actions as an authorized representative. When acting as an authorized representative, the notary public should not provide a notary seal on Form I-9.

For information regarding temporary Form I-9 policy changes due to COVID-19, see the DHS March 20 announcement.

E-Verify Questions and Answers

Can you clarify how remote inspection works for E-Verify?

On a temporary basis due to COVID-19, employers and workplaces that are operating remotely have the option to inspect Form I-9 documents remotely. Employers who choose the remote inspection option may inspect the Section 2 documents over video link, fax, email, etc. Employers should obtain, remotely inspect, and retain copies of the identity and employment eligibility documents their employees provide, within three business days for purposes of completing Section 2.

After they inspect the employee’s documents remotely and determine whether the documents reasonably appear to be genuine and relate to the employee, they should create an E-Verify case for the employee. They should still follow current guidance and create the E-Verify case for their new hire within three business days from the date of hire. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. 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.

If an employee presents a driver’s license that has expired (but has been auto-extended by our state due to COVID-19), what expiration date do I use when creating the E-Verify case?

If a state has automatically extended the employee’s driver’s license due to COVID-19, employers should enter the actual expiration date as printed on the employee’s document when creating the E-Verify case.

03/23/20

Temporary Flexibility of Form I-9 Requirements Related to COVID-19 for Remote Employees

On March 20, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. See the news release for more information on how employers with remote employees may obtain, remotely inspect, and retain copies of the identity and employment eligibility documents their employees provide to complete Section 2 of Form I-9. This provision only applies to employers and workplaces that are operating remotely.

Employers must monitor the DHS and ICE websites for additional updates about when the extensions will be terminated, and normal operations will resume.

E-Verify participants who choose the remote inspection option should follow current guidance and create cases for their new hires within three business days from the date of hire. Please see the E-Verify website for additional information.

03/21/20

E-Verify Extends Timeframe for Taking Action to Resolve Tentative Nonconfirmations

E-Verify is extending the timeframe to take action to resolve Social Security Administration (SSA) Tentative Nonconfirmations (TNCs) due to SSA office closures to the public. E-Verify is also extending the timeframe to take action to resolve Department of Homeland Security (DHS) TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.

IMPORTANT:  You must notify your employee about their TNC result as soon as possible.  After your employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of their employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

New Temporary Policies

We have implemented the following policies to minimize the burden on both employers and employees:

  • Employers are still required to create cases for their new hires within three business days from the date of hire.
  • Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. 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.
  • Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

Customer Support and Account Access

E-Verify Contact Center representatives are still available. Employers will still be able to access their E-Verify accounts and:

  • Enroll in E-Verify;
  • Create E-Verify cases;
  • Add, delete or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts; and
  • Run reports or view any information about an account or case.

Resources

Please visit our resources webpage to learn more. Read the E-Verify User Manual for more information on interim case statuses.

For information on Social Security Administration operating status please visit ssa.gov/coronavirus.

Please be sure to check back for updates. We apologize for any inconvenience.

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