I-9 Compliance During the COVID-19 Pandemic

To comply with the social distancing guidelines to limit the spread of the COVID-19 virus, more employees are working from home. Despite this change, it’s important for HR professionals to help make sure their company stays compliant with employment verification and related requirements – which have not been relaxed (at this time) by the federal government.

 

In fact, there is language on USCIS’s  Special Situations webpage that states, “All requirements for Form I-9, Employment Eligibility Verification, completion and E- Verify remain in place.”

 

Here are 9 of the most important issues and questions U.S. HR departments may have regarding I-9 employees:

 

  1. Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

No. As of this date, the Form I-9 (and E-Verify, if applicable) must still be completed following the existing requirements.

 

  1. What are viable options for completing Form I-9 in remote work scenarios?

Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire with the Form I-9 and the instructions to complete Section 1 on or before the date of hire. Despite the challenges of remote employment, the employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment).

 

One strategy for compliance is to authorize an agent, also referred to as an “authorized representative,” to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. To verify the agent is acting appropriately, many employers will have someone on the phone or present via webinar to observe the Form I-9 process. Keep in mind the agent is acting on the employer’s behalf. Therefore, any mistakes made by the agent will be attributed to the employer.

 

The process of verifying original documents must occur in-person. Make sure whoever is tasked with the verifying is following current CDC guidance relating to reduction of the risk of virus transmission.

 

  1. To comply with social distancing recommendations, can a family member already in the household act as a 3rd party?

Yes, but it’s not an ideal situation. If, due to the employee having to self-isolate and/or quarantine, a family member or health care provider acts as the agent, then the employer needs to make sure Section 2 of the Form I-9 has been completed correctly. The employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

 

It may be wiser to instead wait to complete Section 2 of the form until the employee is in the office and able to meet with the employer in-person to complete the form. Opting to have a late-completed form for the sake of having more control of verifying that the documents presented appear to be genuine and relate to the employee may pay off in the end.

 

  1. If I cannot find anyone to verify a remotely hired employee, should I verify the documents through Skype or Zoom or some other video communication?

No. As for now, the law still requires physical inspection of documents for I-9 purposes.

 

  1. If we normally use an electronic I-9 system, how should remote I-9s be handled?

It is perfectly fine to maintain the I-9 electronically, providing doing so complies with the applicable regulations for electronic I-9 retention. But remember: the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents.

 

  1. What should my company include in the recommended file memo for forms created in this period?

Per 8 CFR §274a.2(b)(2), the Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year (three years from the date of hire or one year from the date of termination, whichever is later).

 

In the event some Form I-9s were completed late or did not have copies of documents attached due to the challenges created by the COVID-19 pandemic, then be sure to write explanatory notes in Section 2. In the event of an inspection or other investigation, those notes and other evidences should confirm your company did all it could to stay compliant despite the trying circumstances.

 

  1. Does suspension of employer operations impact the employment verification requirements?

Yes. If a business is closed, then the Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes. Again, remember to note this on the Form I-9.

 

  1. How does my company receive copies of the documents if an agent was used?

If sections 2 and 3 of the Form I-9 was completed remotely by an agent, your best practice would be for the person acting as the employer’s agent to make copies and deliver them to you. Or, you can make a copy of the documents as soon as the employee can bring them in. However, then you have the challenge of confirming that the documents presented are the same as those used for Form I-9 completion.

 

  1. How can my company ensure we provide clear communication throughout this outbreak?

Because employers and employees are dealing with many difficult issues during this extraordinary time, clear, concise and frequent communication – along with smart policies and proper procedures – are critical. Here are some tips to keep in mind:

  • Create a file memo. This provides a record for future possible enforcement action.
  • Clearly communicate to employees the steps you’re taking in response to the pandemic and any related changes in procedures. Make sure all your actions are based on valid business and compliance-related factors. This will help to mitigate risk of any discrimination-related claims or enforcement.
  • Do not prescribe which document(s) should be presented by the employee. This will help you avoid violation of the anti-discrimination provisions found in 8 CFR §274b. The employee must choose which documents to present for verification or re-verification purposes. Always provide a copy of the List of Acceptable Documents attached to the Form I-9.
  • Great care should also be taken in how the Form I-9 (and document copies, if applicable) completed by an agent are stored and transmitted to your company so that personally identifiable information (PII) is protected.
  • Be sure to use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020.
  • Lastly, it’s a good idea to create an action plan of priorities that balances the competing factors and document the same so it’s 1) clear any actions were taken out of both caution and for the sake of I-9 compliance during this global pandemic and 2) the actions you take were deemed in your employees’ best interest during these challenging times.

Please contact your Graham Adair representative with any questions.

San Ysidro Port of Entry Reopened After 11/25 Closing

On Sunday, November 25, service at the San Ysidro Port of Entry on the Mexican border was suspended for several hours due to escalating tensions between migrants and U.S. Border Patrol in Tijuana.

U.S. Customs and Border Protection closed northbound, southbound, and pedestrian access to the Port around 11:30AM, reopening pedestrian access at 3:45PM and reopening the rest of north- and southbound vehicle access by 6PM. Extra personnel, including officers from Customs and Border Protection, Border Patrol, the Air Force, and the Marine Corps, were also deployed in response.

While the Port is currently open, clients should monitor the situation and plan accordingly, as complications may arise in the future without warning.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

DOL Updates H-1B Labor Condition Application and Worker Complaint Form

The United States Department of Labor (DOL) has announced updates to the H-1B Labor Condition Application form (Form ETA-9035) and the worker complaint form (Form WH-4), intended to promote business compliance and transparency with the H-1B program.

The Labor Condition Application Form will require new details about H-1B worker employment, including the following:

  • All places of employment for H-1B workers, including short-term positions.
  • Estimated number of H-1B workers at each intended place of employment.
  • Clear identification of secondary entities using H-1B workers.
  • Documentation of H-1B workers’ degrees, for employers who claim exemption solely on the basis of education.

The worker complaint form will include new fields for further details about alleged H-1B program violations.

The Office of Foreign Labor Certification will announce the date of the new forms’ availability on their website in the coming weeks.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Sam Adair Quoted in Los Angeles Daily Journal, Law360 on Immigration Policy

Sam Adair recently spoke to leading legal publications the Los Angeles and San Francisco Daily Journal and Law360 on a recent U.S. Citizenship and Immigration Services memo which could have a major impact on immigration policy in the U.S. The memo states that immigration officials will be allowed to deny outright visa applications without a Request for Evidence (RFEs) or Notice of Intent to Deny (NOIDs). According to Sam, this change could mean that a high number of applications could be denied without a chance for attorneys to provide additional evidence on behalf of their clients.

“How they’re going to determine which application is frivolous versus which is substantive is going to be arbitrary,” said Sam.

USCIS Update to Form I-797 Receipt Notices for Form I-751 and Form I-829

U.S. Citizenship and Immigration Services has announced that petitioners will now receive a Form I-797 receipt when filing a Petition to Remove Conditions on Residence (I-751) and a Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (I-829). The petitioners will now be able to use that receipt as evidence of continued status for 18 months past the expiration date on their Permanent Resident Card (I-551).

Previously 12 months, the continued status is being extended 18 months past expiration due to the increased processing times for Form I-751 and Form I-829 this year. This is a welcome change to working immigrants, as the I-797 receipt serves as proof of ongoing employment eligibility and the official document for international travel when a conditional green card has expired.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Quiet Change to STEM OPT Program Requires Immediate Action

USCIS quietly made a change to the STEM OPT program earlier this year. Without any formal announcement, the agency published a new restriction on the STEM OPT page of its website stating that employers may employ students under the STEM OPT program only if the employer will provide the practical training experience to the student at its own place of business. This is a sharp departure from previous interpretations of employer-employee relationships permitted under the STEM OPT program.

What this means for our clients:

If you have contractors working at your company under the STEM OPT program and you wish to continue to utilize their services, you must transfer the STEM OPT student to your employ and fill out a new I-983 training plan for the student to submit to their school at the earliest. It is particularly important that the transfer take place sooner rather than later if you have filed an H-1B cap case on the student’s behalf in this year’s H-1B visa lottery.

If you have questions about this, please contact Sam Adair. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

H-1B Cap Reached for FY 2019

USCIS has completed the random selection process for reaching the H-1B cap and the advanced degree exemption (master’s cap) for fiscal year (FY) 2019.

Between April 2nd and April 6th, USCIS received 190,098 H-1B petitions, including those counting towards the advanced degree exemption. USCIS received approximately 9,000 fewer petitions than were received for last year’s H-1B cap. The general statutory cap is 65,000 petitions, and the master’s cap is 20,000. USCIS randomly selected visas in the master’s cap category first, from which unselected petitions became part of the 65,000 cap lottery.

USCIS will continue to process cap-exempt petitions, as well as petitions for current H-1B workers to:

  • Extend stay in the U.S.;
  • Change employers;
  • Work concurrently in another H-1B position;
  • Change terms of employment.

USCIS will return unselected petitions with their filing fees. Current H-1B workers who have been counted towards the cap will not be counted towards the FY 2019 cap. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

1 2 3 4