form i-9 best practices: training presentation

Form I-9 Best Practices: Training Presentation

Current as of: 06/25/2020

by Bruce E. Buchanan, Sebelist Buchanan Law PLLC

This presentation provides training on the best practices in completing the Form I-9 and E-Verify processes, including the do's and don'ts of completing the Form I-9 and storage of the Form I-9. Although the Form I-9 is only a two-page document, it is fraught with possibilities of errors, which could ultimately cost an employer lots of money. Since Form I-9 and E-Verify go hand in hand, this presentation will examine the E-Verify process and offer guidance on whether to use E-Verify. The form includes speaker notes to facilitate your presentation. The presentation also addresses the process which must be followed in reverifying an employee's Form I-9, including when to do so and when not to do so and how to store Forms I-9. As we know the impact of COVID-19 is widespread, this presentation will discuss temporary modifications of the I-9 and E-Verify process and discuss whether this change could be permanent.

For information on I-9 compliance, see I-9 Policies and Best Practices for I-9 Compliance, Form I-9 Completion Checklist, I-9 and E-Verify Processing Timelines Chart, and Screening and Hiring Resource Kit. See also USCIS Handbook for Employers, Guidance for Completing Form I-9. For relevant state-specific information, see E-Verify and Employment Eligibility Verification State Law Survey.

For a resource kit focused on employees returning to work during COVID-19 and broken up by key employment law topics, see Coronavirus (COVID-19) Resource Kit: Return to Work. For more guidance on a wide variety of COVID-19 legal issues, see Coronavirus (COVID-19) Resource Kit. For tracking of key federal, state, and local COVID-19-related Labor & Employment legal developments, see Coronavirus (COVID-19) Federal and State Employment Law Tracker. For tracking of key federal, state, and local Labor & Employment legal developments, see Labor & Employment Key Legal Development Tracker.

For a further discussion on Form I-9 Best Practices, see The I-9 and E-Verify Handbook (2d edition) by Bruce E. Buchanan and Greg Siskind [http://www.amazon.com/dp/0997083379], my I-9 and E-Verify Compliance blog [www.employerimmigration.com], and Twitter - @buchananvisalaw.

Form I-9 Best Practices: Training PresentationSlide Contents Notes1. Form I-9 Best Practices: Training Presentation

for [AUDIENCE]by:[DATE]

The presenter's style is often as important as the substance of the presentation. Personalize this presentation in a way that engages your audience. Break up the material (even if that means using more slides) in a way that makes sense for your audience. To further assist in retaining key concepts, consider including work-appropriate analogies and pictures to keep your audience engaged.

Keep a copy of this presentation and record the names of attendees.

2. Overview

• What is the latest Form I-9 edition to use?• Who must complete a Form I-9?• Who does not need to complete a Form I-9?

Make sure you convey to your audience that this presentation is a general overview of the topic and the appropriate steps or strategies to be taken for Form I-9 best practices can depend on the particular circumstances.


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• What are best practices in completing Form I-9?○ Section 1 best practices○ Section 2 best practices○ Section 3 best practices• How to Store Forms I-9• Best Practices in E-Verify• Temporary Form I-9 Changes due to COVID-19

For information on I-9 compliance, see I-9 Policies and Best Practices for I-9 Compliance, Form I-9 Completion Checklist, I-9 and E-Verify Processing Timelines Chart, and Screening and Hiring Resource Kit. See also M-274 - USCIS Handbook for Employers, Guidance for Completing Form I-9. For relevant state-specific information, see E-Verify and Employment Eligibility Verification State Law Survey.

For guidance on understanding immigration law terms, see Business Immigration Law Common Terms, Acronyms, and Abbreviations Checklist.

3. Which Edition of the Form I-9 Must Currently be Used?

• As of May 1, 2020, employers must use Form I-9 dated "10/21/2019" in the bottom left-hand corner.• Reverifications and rehires using Section 3 of the Form I-9 may be made on the previously completed version of the Form I-9 or the current version.• U.S. Citizenship and Immigration Services (USCIS) makes Form I-9 available in English and Spanish. Spanish edition may only be used in Puerto Rico.

Note the Spanish form may be used for translation purposes. It should be laminated so it will not be inadvertently used to complete a Form I-9.

For Form I-9 in Spanish with instructions, see Employment Eligibility Verification (Form I-9) with Instructions (Spanish).

4. Who Must Complete a Form I-9?

• All employees hired after November 6, 1986 must complete Form I-9.• There is no exemption from the requirements because an employee is part-time.• Employees rehired within three years of their initial hire date, are allowed to complete a new Form I-9 or complete Section 3 of the old Form I-9, employer's choice.

Many employers find completing a new Form I-9, instead of Section 3, is easier to administer because you do not have to know the original hire date.

For a completed Form I-9 with instructions, see Employment Eligibility Verification (Form I-9) with Instructions.

5. Who Does Not Need to Complete a Form I-9?

• Volunteers• Independent contractors• Persons transferring within a company• After an employee completes paid or unpaid leave (such as for illness or a vacation)• After a temporary layoff• After a strike or labor dispute• Gaps between seasonal employment

True volunteer positions involve no receipt of pay, and the employee does not receive any other type of benefit in lieu of pay (such as food and lodging).

Although an independent contractor is not subject to the Form I-9 rules, employers should note if they outsource work to companies that they know to use unauthorized employees, as they could also be held liable under Immigration Reform and Control Act (IRCA).

For information on independent contractors generally, see Wage and Hour—Independent Contractors subtask on the Labor and Employment practice area page.

6. Best Practices for Completing Section 1 (Employee Information and Attestation)

• Completed by employee. Section 1 must be completed by the employee unless he or she needs the use of a translator/preparer.• Completed on first day of employment. Section 1 must be completed on the first day of employment (first day earning wages) or beforehand after accepting an offer of employment.

Although the Form I-9 instructions state one must enter "N/A" in boxes unused, to date, we are not aware of any employer who has been cited for a technical or substantive error for failure to enter "N/A" in these boxes.

For information on I-9 compliance, see I-9 Policies and Best Practices for I-9 Compliance, Form I-9 Completion Checklist, I-9 and E-Verify Processing Timelines Chart, and Screening and Hiring Resource


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• Section 1 contents. Section 1 includes basic biographical information on the employee and most importantly asks the employee to certify he or she is a United States citizen (UCS), a noncitizen national, legal permanent resident (LPR or green card holder), or individual authorized to work.• Social Security number. Although Section 1 requests Social Security number, email address, and telephone number, this information is optional, the Social Security number is mandatory if the employer uses E-Verify.• Use of "N/A". Employees must enter "N/A" in boxes for "middle initial," "other Last Names" or "apartment number", if no information is applicable.

Kit. See also M-274 – USCIS Handbook for Employers, Guidance for Completing Form I-9. For relevant state-specific information, see E-Verify and Employment Eligibility Verification State Law Survey.

7. Best Practices for Completing Section 1 (Employee Information and Attestation) (continued)

• Permanent resident. Permanent resident must provide an "Alien" or "USCIS" number.• Noncitizen national. "Noncitizen national" is born in American Samoa or Swains Island.• Individual authorized to work under another status. "Individual authorized to work under another status" means one having Employment Authorization Document (EAD) or applicable visa. He or she must provide:○ Alien or admission number and the expiration date of the EAD, if applicable –or–○ Country of foreign passport and number accompanied by a Form I-94/94A Arrival-Departure Record bearing the same name as passport and containing an endorsement of the individual's nonimmigrant status and authorization to work for specific employer plus expiration date of the EAD.• Individual authorized to work under another status. "Individual authorized to work under another status" also means a visa authorizing employment for a specific of time, such as E-1, E-2, H-1B, H-2A or B, L-1A, L-1B.

For more information on visas, see Business Immigration — Visas practice notes page.


• Signature and date. Employee must sign and date Section 1 on first day of employment or beforehand.• Error made on Section 1. If an error is made on Section 1, such as failure to check off a box as to status (USC, LPR, EAD) or failure to sign, it is the responsibility of the employer to locate the error and have the employee correct the error.• Employer responsibility for error. Immigration & Customs Enforcement (ICE) will hold the employer responsible for the error and if it is a substantive error, assign a penalty to the error.

For more discussion on correcting Form I-9 errors, see I-9 Policies and Best Practices for I-9 Compliance and M-274 – USCIS Handbook for Employers, Guidance for Completing Form I-9, part 8.0.


• Use of translator. If the employee used a preparer/translator to complete the form, preparer/translator must certify such person helped the employee by completing Preparer/Translator Certification block.


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• Indicating use of translator. If the employee did not use a preparer/translator, the employee should check the box marked "I did not use a preparer or translator."• Employee representative. An employer representative can act as the preparer and/or translator.

10. Best Practices for Completing Section 2 (Employer or Authorized Representative Review and Verification)

• Complete within three business days. Employer must complete Section 2 when presented with employee's document(s) within three business days of hire.• Examination of documents. Employer must examine document(s) that establish the employee's identity and employment eligibility.• Appearance of documents. Document(s) must appear "genuine" and relate to person presenting.• Expired documents. Employee may not present expired document.• Receipt of seeking replacement Social Security card. Employee may present receipt that seeking replacement Social Security card and the employer should note Social Security receipt in List C.Employee must show Social Security card to the employer within 90 days and the employer should cross-out receipt and add card in List C.

Use the Monday – Thursday rule to explain the deadline. If an employee's first day is on Monday, the employer must complete Section 2 by Thursday.Explain business day as meaning any day the employer has employees working, even Saturday or Sunday.

For more information on employee eligibility verification, see Business Immigration — Employee Eligibility Verification practice notes page.

For guidance on how to complete Form I-9, see Form I-9 Completion Checklist.

11. Best Practices for Completing Section 2 (Employer or Authorized Representative Review and Verification) (continued)

• Documents for identification and employment eligibility (List A). Documents showing both identification and employment eligibility (List A) include:○ An unexpired U.S. passport or U.S. passport card○ An unexpired permanent resident card○ An unexpired foreign passport with a temporary I-551 stamp○ An unexpired Form EAD containing a photograph○ An unexpired foreign passport with an unexpired Form I-94 Arrival/Departure Record with the same name as the passport and endorsement showing employee's nonimmigrant status and the individual's eligibility to work for that employer○ Passport from Federated States of Micronesia (FSM) or the Marshall Islands (RMI) with Form I-94 or Form I-94 A indicating nonimmigrant admission under the Compact of Free Association between the United States and the FSM or RMI



• List B documentation. Form I-9's List B lists documentation acceptable to prove identity including (List B document may be provided with a List C document):○ An unexpired driver's license or identification card issued by a state or outlying possession of the United

There are a few acceptable List B documents for individuals under the age of 18 who are unable to present a document listed above, including school record or report card; clinic, doctor or hospital record; or day care or nursery school record.

For minors under the age of 18 and certain individuals with disabilities who are unable to produce any of the listed identity documents, special notations may be used in place of a List B document.


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States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address○ An unexpired identification card issued by a federal, state, or local government agency or entity if the form contains a photograph or information such as name, date of birth, gender, height, eye color, and address○ An unexpired school identification card with a photograph○ An unexpired voter registration card○ An unexpired U.S. military card or draft record○ An unexpired U.S. Coast Guard Merchant card○ An unexpired Native American tribal document○ An unexpired driver's license issued by a Canadian government authority


• List C documentation. Form I-9's List C lists documentation acceptable to prove employment eligibility include:○ A U.S. Social Security card issued by the Social Security Administration (other than a card stating that it is "not valid for employment" or valid for work only with Immigration and Naturalization Service (INS) or Department of Homeland Security (DHS) authorization)○ Certification of Birth Abroad issued by State Department (Forms FS-240, FS-545, DS-1350)○ Original or certified copy of a birth certificate issued by a state, county, or municipal authority, or outlying possession of the United States bearing an official seal○ Native American tribal document.○ U.S. citizen identification card (Form I-197)○ Identification card for use of Resident Citizen in the United States (Form I-179)○ Unexpired EAD issued by the DHS (other than one listed under List A)

For more information on employee eligibility verification, see Business Immigration — Employee Eligibility Verification practice notes page.



• Employers should not tell employees which documents to use. Employers may not tell employees which documents to supply. Rather, the employer must present the Lists of Acceptable Documents included on the latest Form I-9 instructions and allow the employee to choose what will be presented.• Employer must accept documentation that appear genuine. Employers must accept the documentation provided it appears genuine. Employers that violate this requirement risk being found liable for committing an unfair immigration-related employment practice under IRCA.• Use of E-Verify. The one exception to this rule applies to employers using E-Verify, they may accept only List B documents with a photograph of the employee.

For a completed Form I-9 with instructions, see Employment Eligibility Verification (Form I-9) with Instructions. For Form I-9 in Spanish with instructions, see Employment Eligibility Verification (Form I-9) with Instructions (Spanish). However, the Spanish Form I-9 may only be used in Puerto Rico.

For information on penalties under IRCA, see IRCA Penalties Chart.

15. Best Practices for Completing Section 2 (Employer or Authorized Representative Review and

The codes referred to mean the following status: A03 – refugee; A05 – asylee; A07 - N-8 and N-9 parent or


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Verification) (continued)

• Expired identification documents. Expired identification documents may not be accepted in Lists A and B.• Exception to expired documents. An exception is where one has temporary protected status (TPS) (code A12), who has expired EAD where DHS has granted an extension of 180 days through a Federal Register notice OR certain individuals who timely filed to renew an EAD in the same category as the previous EAD, and are in a category eligible for the extension – see these codes: A03, A05, A07, A08, A10, A12, C08, C09, C10, C16, C20, C22, C24, and C31.

child of international organization employee granted permanent residence; A08 - Citizen of Micronesia, the Marshall Islands or Palau admitted as a nonimmigrant; A10 - granted Withholding of Deportation or Removal; A12 - TPS granted; C08 - asylum applicant w/ pending asylum application; C09 - Adjustment of status applicant; C10 - Suspension of deportation, Cancellation of Removal applicants; C16 - Registry applicant; C20 - one who has filed legalization application for special agricultural workers (SAW); C22 – one who has filed a completed legalization application under INA 245A; C24 - LIFE legalization applicant; and C31 – Principal and/or qualified beneficiary of an approved VAWA self-petition.


• Use of receipt. A receipt is not be acceptable in most cases.• Receipt for an initial grant of employment authorization or renewal. A receipt for an initial grant of employment authorization or a renewal of employment authorization will not suffice for Form I-9 purposes unless it fits within an exception listed above.• Receipt for a replacement document. An exception is made in the case of a receipt for a replacement document when the document has been lost, stolen, or damaged. Then, it is valid for a 90-day period before the replacement document must be provided.

17. Best Practices for Completing Section 3 (Reverification)

• Reverification. For reverification, the employer should complete all of Section 3: document title, document number and sign, and date the reverification. If one needs to fill out reverification more than once, do so on a separate form and attach it to the old form.• Employer should not reverify permanent resident cards, U.S. passports, or driver's licenses.

If an employee continues work after EAD expires and no exception exists, the employer is knowingly employing an undocumented worker and faces penalties from ICE.

Reverification means the employee's work authorization status is temporary, either through EAD or non-immigration visa, such as H-1B, L or O. Thus, an employee must reverify their work authorization status with a new document before their status expires. However, be cognizant of those statuses that can be extended – see slide 15.

Permanent resident cards may expire but that does not mean the employee is no longer a permanent resident. Similarly, if a U.S. citizen's passport expires, it doesn't mean you are no longer a U.S. citizen.

18. Best Practices for Completing Section 3 (Reverification) (continued)

• Expiration of EAD. If an employee has EAD, it will expire 12 to 24 months after issuance.• Employee must have a new EAD card before old EAD expires unless he or she fits within an exception set forth in slide 15.• Employer needs to reverify the employee after employee receives new EAD.• Documents that can be used for reverification. Employee may provide a new EAD, an unrestricted Social Security card, or green card for reverification.

Employers should establish a reliable tickler system to prompt reverification. Aside from complying with the reverification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task.


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19. Best Practices for Completing Section 3 (Reverification) (continued)

• Visas and reverification. Besides the need to renew EADs, employees who are on certain non-immigrant visas, such as E-1, E-2, H-1B, L, will need reverification through new visas, or possibly a green card.○ For these visa extensions, the employer is the sponsor; thus, it will know if the visa extension has been granted.○ If the I-129 for the visa extension is filed before the visa's expiration, the employee's visa is automatically extended for 240 days from its expiration or its denial in certain categories.

20. Best Practices for Completing Section 3 (Rehires)

A second use of Section 3 is for rehires.

• When is an employee a rehire? For an employee to be considered a "rehire," the employer must be rehiring the employee within three years of the initial hiring date of the employee. Employers must:○ Record the rehire date.○ If the formerly listed work authorization has expired, write the document title, number, and expiration date of any eligible document presented by the employee.○ Sign and date Section 3. If the reverification is recorded on a new Form I-9, write the employee's name in Section 1.

21. Best Practices for Completing Section 3 (Name Change)

• Name change. A third purpose of Section 3 is to record a name change.• Not mandatory to record a name change. An employee's name change may be recorded by the employer in Section 3, although it is not mandatory to complete Section 3 for a name change.• Marriage certificate or divorce decree. If an employee requests such, it is to record a name change, such as a marriage certificate or divorce decree.

22. Best Practices in Storage of Form I-9

• Form I-9 completed on paper. Form I-9 completed on paper may be stored in paper, or another format or in an electronic, microfilm, or microfiche format.• If you complete a paper Form I-9, you may scan and upload the original signed form, correction, or update, and retain it electronically.• You may destroy the original paper form after you have securely stored it in an electronic format.

If use microfilm or microfiche, there are specific rules you must follow. Given almost no one uses microfilm or microfiche, we will not discuss it in this presentation.

For more information on business immigration recordkeeping requirements, see Business Immigration Recordkeeping Requirements Chart.

23. Best Practices in Storage of Form I-9 (continued)

• Electronic system. Any electronic system you use to generate Form I-9 or retain completed Forms I-9 must include:○ Reasonable controls to ensure the system's integrity, accuracy, and reliability


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○ Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature, if used○ Inspection and quality assurance program that regularly evaluates the system and includes periodic checks of electronically stored Form I-9, including the electronic signature, if used○ Indexing system that allows users to identify and retrieve records maintained in the system


• Electronic completion and storage. If you complete or retain Forms I-9 electronically, you must maintain documentation of the business processes that:○ Create, or generate, the retained Form I-9○ Modify and maintain the retained Form I-9○ Establish the authenticity and integrity of the forms, such as audit trails


• Electronic signature. If you complete Form I-9 electronically using an electronic signature, your system for capturing electronic signatures must:○ Allow individuals to acknowledge that they read the attestation○ Attach the electronic signature to an electronically completed Form I-9○ Affix the electronic signature at the time of the transaction○ Create and preserve a record verifying the identity of the person producing the signature○ Upon the employee's request, provide a printed confirmation of the transaction○ Include a method to acknowledge you have attested to the required information in Section 2


• Copies. An employer does not legally have to keep copies of the documents presented by the employee for purposes of Section 2 unless using E-Verify.• E-Verify. Under E-Verify, if an employee presents a Permanent Resident Card, EAD or U.S. passport or passport card as the verification document, the employer must make a copy of that document and keep it on file with Form I-9.

Keeping Form I-9 records with personnel records is generally a bad idea.Keeping the Forms I-9 separate will make it easier to conduct internal audits to ensure compliance with the IRCA and to reverify forms as needed.

27. Best Practices in Storage of Forms I-9 (continued)• Employers should retain copies of documents and must keep the copies with the specific Form I-9 for the following reasons:○ Technical error. If some data is missing in Lists A, B, or C, such as the issuing authority or expiration date, it is only a technical error, not a substantive one.○ Good faith defense. The copies could provide a good faith defense for an employer that needs to show it had reason to believe an employee was authorized even if the paperwork was not properly completed.○ Internal audits. Makes it easier for an employer to conduct internal audits to ensure compliance.

Retention of documentation is a best practice.In case after case involving ICE Notices of Inspection,The Office of the Chief Administrative Hearing Officer (OCAHO), the federal government agency that hears litigation related to alleged Form I-9 substantive errors, has decided that errors on Form I-9s, such as failure to list an expiration date for a document, failure to list an issuing authority, or failure to list the employee's USCIS number are substantive errors, for which the employer will be fined, unless the employer provided ICE copies of these documents attached to the Form I-9. See, e.g., U.S. v. DJ Drywall, Inc., 10 OCAHO no. 1136 at 11 (2010) ("Where a violation consists solely


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of the absence of a title, document number, or expiration date for a document presented to verify identity and/or work authorization, attaching a legible copy of that document can render the violation merely technical and/or procedural.")

For information on Form I-9 government audits, see I-9 Investigations by Government Agencies and Form I-9 Government Audits Checklist (Employer Preparation and Response).

28. Best Practices of E-Verify

• What is E-Verify? E-Verify is an Internet-based system that employers may use to confirm the legal status of newly hired employees.• Voluntary in most states. For most employers, E-Verify is voluntary. However, as of June 15, 2020, eight states—Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Utah—require E-Verify for all employers. In those states, there may be a minimum number of employees employed, such as over 10, 15, 25, or 50, for E-Verify to be mandatory.• State or local government contracts. Some states limit the E-Verify requirement to employers with state or local government contracts.

For information on E-Verify, see E-Verify Enrollment, Participation, and Best Practices, I-9 and E-Verify Processing Timelines Chart, E-Verify Requirements for FAR Federal Contractors vs. Non-FAR Employers Chart, and E-Verify Timeframes Chart.

For information on state E-Verify laws, see E-Verify and Employment Eligibility Verification State Law Survey and the New Employee Onboarding column of Screening and Hiring State Practice Notes Chart. Also see State Immigration Laws: Compliance Issues for Employers.

29. Best Practices of E-Verify (continued)

• Administration. E-Verify is a partnership of DHS and Social Security Administration (SSA) and administered by the USCIS.• Memorandum of understanding. To participate in E-Verify, an employer must register online at the DHS E-Verify page and accept the applicable electronic memorandum of understanding (MOU) that details the responsibilities of the SSA, DHS, and employer.• Notices. Employers are required to post two notices, in English and Spanish, in an area visible to prospective employees stating:○ Employer is an E-Verify participant.○ Anti-discrimination notice issued by the Immigrant and Employee Rights Section (IER) of Justice Department.• Online employment applications. If applications for employment are taken online, these notices must be on the website where the application process occurs or with the online application.

There are six different MOUs, which vary depending on whether an employer or employer agent is using E-Verify and the access method for E-Verify.


• Submission of Form I-9: start date. The employer must enter Form I-9 information into E-Verify no later than three business days after the new employee's actual start date.• Submission of Form I-9: before start date. Employers may enter Form I-9 information into E-Verify before the start date if the employee has been hired.• Verification. E-Verify compares the following to an employee's name and other Form I-9 information to confirm employee matches: (1) Social Security number


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(SSN) data, (2) information in DHS immigration databases, (3) passports, and (4) driver's license records.


• E-Verify results. After an employer submits the information into the E-Verify website, E-Verify system will return one of four results:○ "Employment authorized."○ "SSA Tentative Non-confirmation" (TNC): Employee's name and SSN do not match the records in the SSA database.○ "DHS Tentative Non-confirmation" (TNC): Employee's name does not match the name listed in the DHS database.○ "DHS Verification in Process": DHS will usually respond within 24 hours, though it may be three federal government workdays, with a reply of "Employment Authorized," "DHS Case in Continuance," or "DHS Tentative Non-confirmation."


• "Employment authorized." If an employee is "employment authorized," the employer will attach the E-Verify authorization document to the employee's Form I-9 or record the verification number on the Form I-9.• TNC response. If an employer receives a TNC response, the employer must promptly provide the employee with a "Further Action Notice" (FAN), explaining how to challenge the TNC, and the employee can then contest the determination with the SSA or DHS. The employee will have eight federal government workdays to contact the SSA or DHS to resolve the issue.• Employee contests TNC. If the employee contests the TNC, the SSA or DHS has eight federal workdays from the employer's referral to resolve the matter unless the SSA or DHS determines it needs additional time.

The best practice is to attach the E-Verify authorization document to the employee's Form I-9.


• Adverse action. The employer may not terminate, suspend, or take any adverse employment action against the employee for the TNC while the matter is being contested, unless the employer obtains independent information of an employee's unauthorized status.• Employee does not contest the TNC finding. If the employee does not contest the finding, the determination is considered final, and the employer should terminate the employee.


• Employees without a Social Security number. If the employee does not have a Social Security number (SSN), the employer should wait until the number is available.• Action once the employer receives the SSN. The Form I-9 still needs to be completed, and, after the


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employer receives the SSN, the employer must file the query with E-Verify.


Advantages of E-Verify

• Employers not in violation of INA. Employers are presumed not to have violated the Immigration and Nationality Act (INA) regarding the hiring of any individual if it obtains "Employment Authorized" from E-Verify.• Safe harbor. Some states, such as Tennessee, do consider the use of E-Verify to be a "safe harbor" from violation of the state's own law.• Removes burden of determining if employee's documents are genuine. Use of E-Verify removes some of the burden of determining whether an employee's documents are genuine.• Reduces number of undocumented workers for employer. E-Verify should reduce the number of undocumented workers employed by an employer because it does a much better job of detecting fraudulent work-authorization documents.

DHS does not consider using E-Verify to provide a "safe harbor" from worksite enforcement.

For information on state E-Verify laws, see E-Verify and Employment Eligibility Verification State Law Survey and the New Employee Onboarding column of Screening and Hiring State Practice Notes Chart. Also see State Immigration Laws: Compliance Issues for Employers.


Disadvantages of E-Verify

• Rebuttable presumption. An employer will have a rebuttable presumption that it knowingly employs someone ineligible to work if it continues to employ someone after receiving a final non-confirmation.• DHS and SSA officials. Employers must agree to permit DHS and SSA officials to visit their worksites to review E-Verify records and other employment records related to E-Verify.• Monitoring & Compliance (M&C) of USCIS "mines" data from E-Verify. If it determines the employer has a large number of green cards for the document for proof of LPR status instead of driver's licenses and Social Security cards, it will send a noncompliance letter to employer. If M&C determines employer is "out of line," it will make a referral to IER of Department of Justice (DOJ).• More work for Human Resources (HR) departments. Creates additional work for busy HR departments.


• Retroactive review. E-Verify may not be used retroactively to go back and check employees hired before the company signed the memorandum of understanding (MOU) or to reverify employees who have temporary work authorizations.• Federal Acquisition Regulation (FAR) E-Verify. However, if an employer falls under Federal

For information on Federal Acquisition Regulation (FAR), see E-Verify Requirements for FAR Federal Contractors vs. Non-FAR Employers Chart.


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Acquisition Regulation (FAR) E-Verify, it must verify existing employees working on the federal project, as well as new hires, and may opt to verify all existing employees and new hires.

38. Temporary Form I-9 Changes due to COVID-19

• In-person review. DHS announced on March 21, 2020, due to COVID-19, employers working remotely may defer the requirements for employers to review Form I-9 documents in-person with new employees where employers and workplaces are operating remotely.• Physical proximity precautions due to COVID-19. Thus, 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.• Section 2 documents. Employers in these circumstances may inspect the Section 2 documents remotely (e.g., over video link, fax or email) within three business days for purposes of completing Section 2.• Enter COVID-19 in Section 2. Employers should enter "COVID-19" as the reason for the physical inspection delay in the Section 2 "Additional Information" field.

This temporary change was originally through May 19, 2020 or within three business days after the termination of the national emergency, whichever comes first. It has been extended to July 18, 2020. See USCIS, DHS announces flexibility in requirements related to Form I-9 compliance.

Employers that avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

For more guidance on a wide variety of COVID-19 legal issues, see Coronavirus (COVID-19) Resource Kit.

39. Temporary Form I-9 Changes due to COVID-19(continued)

•Normal operations. Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9.• In-person review. Once the documents have been physically inspected, the employer should add "documents physically examined" with the date of inspection to the Section 2 "Additional Information" field on the Form I-9, or to Section 3 as appropriate.

This temporary change may become permanent if immigration compliance attorneys get their wish. For years, American Immigration Lawyers Association (AILA) has urged remote verification but DHS has been opposed. Maybe the temporary change will be the impetus for permanent change.


• Review of provision. This new caveat to I-9 compliance may or may not be only applicable to "where employers and workplaces are operating completely remotely"—meaning employees are working remotely. To answer the question, let us look at exact language in question:• This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9…. However, 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.

For more information on these rules, see USCIS, DHS announces flexibility in requirements related to Form I-9 compliance.

41. Temporary Form I-9 Changes due to COVID-19


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(continued)

• "Employers and workplace." The phrase, "employers and workplaces", seems to imply DHS will be looking at the particular workplace. If not, why did DHS use both "employers and workplaces" instead of just employers.• Multiple workplaces. Thus, if an employer has one workplace open while others are closed due to COVID-19 "Safe at Home" orders, one could arguably allow an employer to use remote verifications for new hires at the closed locations, where all employees are working remotely.• Why? Because that specific workplace is operating remotely.


• Existing employees working on-site and use of remote verification for new hires. What if an employer has existing employees working on-site but wants to use remote verification for new hires to maintain the six feet social distancing?• Case-by-case basis. This appears to be where the employer may use the sentence "[I]f newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate (remote verification) on a case-by-case basis" to their advantage.

In favor of using the temporary Covid-19 remote verification rules is DHS including existing employees as being subject to quarantine as opposed to just new hires. Thus, employers with on-site employees could argue that it can use remote verification for new hires working remotely.

Second, an employer's HR department may be operating remotely due to COVID-19 restrictions while the plant is operational as an essential business.

In both situations one could arguably use remote verification and if audited by ICE, ask for forgiveness for this interpretation.


• List B identify documents. DHS also announced a temporary change in the acceptance of List B identity documents during the I-9 verification process.• Expired documents. Beginning on May 1, identity documents found in List B which are 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.

This policy change is due to the fact that many states, counties, or cities have issued 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 List B identity document.


• Acceptable expired List B documents. When an employee provides an acceptable expired List B document that has not been extended by the issuing authority the employer should:○ Record the document information in Section 2 under List B, as applicable –and–○ Enter the word "COVID-19" in the Additional Information field• Presentation of unexpired documents. When the employee later presents an unexpired document, the employer should do the following in the Section 2 Additional Information field:○ Record the number and other required document information from the actual document presented –and–


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○ Initial and date the change45. Temporary Form I-9 Changes due to COVID-19

(continued)

• Acceptable expired List B documents. When the employee provides an acceptable expired List B document that has been extended by the issuing authority the employer should:○ Enter the document's expiration date in Section 2 –and–○ Enter "COVID-19 EXT" in the Additional Information field• Copy of webpage. Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents.• Check state Motor Vehicle Administration's website. 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's website.

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


• When employee must present a valid unexpired document. Within 90 days after DHS's termination of this temporary policy, the employee must present a valid unexpired document to replace the expired document presented when they were initially hired.• Employee can chose different List A or List B documents. Although it is best if the employee can present the replacement of the actual document that was expired, 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.

47. Temporary E-Verify Changes due to COVID-19

• Timeframe extension. First, E-Verify is extending the timeframe to take action to resolve SSA or DHS Tentative Non-confirmations (TNCs) due to SSA or DHS office closures to the public.• Notify employee of TNC results as soon as possible. However, one must still notify an employee about their TNC result as soon as possible. After an 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 (FAN), and the employer should notify E-Verify of their employee's decision.• Employees who take action to resolve TNC. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS.

USCIS and DHS have not stated the length of this temporary change although presumably it will end at the same time as the temporary remote verification policy ends. Currently that is July 18, 2020. E-Verify Extends Timeframe for Taking Action to Resolve Tentative Nonconfirmations.

48. Temporary E-Verify Changes due to COVID-19 (continued)

• Case creation. E-Verify has revised another policy. Although employers still must create cases for their new hires within three business days from the date of hire, if case creation is delayed due to COVID-19 precautions, select "Other" from the drop-down list and

USCIS and DHS have not stated the length of this temporary change although presumably it will end at the same time as the temporary remote verification policy ends. Currently that is July 18, 2020. E-Verify Extends Timeframe for Taking Action to Resolve Tentative Nonconfirmations.


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enter "COVID-19" as the specific reason for delay.49. Questions?

End of Document