I-9 Work Authorization Compliance and COVID-19

The U.S. Government has made a number of changes relevant to I-9 practices in the past few months. Some were scheduled, and some relate to the COVID-19 outbreak.

Now is a really good time to review all Form I-9 Employment Eligibility Verification Form practices. I-9 audits were up over 400% before the outbreak. Immigration enforcement continues to be  a top priority for the Administration, and we expect I-9 audits to continue to increase, in part as a U.S. labor market protection. The government increased staffing significantly to review employer I-9 records. Studies show more than half of I-9 forms have administrative errors.  The fines can be very expensive. An ounce of prevention is better than a pound of cure.

Here are some of the latest updates on the I-9 front:

  • As of May 1st, employers can only use the 10/21/19 edition of the I-9 form.  You can find the edition date at the bottom of the form and instructions.
  • The M-274 Handbook for Employers, which provides comprehensive guidance for employers on completing the form, was updated once again last week. The most recent updates include:
    • Clarifies who can serve as Authorized Representative in the instructions.
    • Clarifies that second List B document does not include state issued driver’s license or ID.
    • Clarifies that the employment authorization document issued by DHS in List C of the List of Acceptable Documents does not include the common I-766 Employment Authorization Document, from List A.
    • Revised guidance to clarify that employers should enter expiration date changes based on automatic extension of documents in the Additional Information field in Section 2 and eliminated instructions to have employee cross out and initial information in the “Alien authorized to work until” expiration date in the field.
    • Revised cap-gap extension document requirements related to student/H-1B applicants. Employers must enter the receipt number from the Form I-797C Notice of Action as the employee’s Document Number in Section 2. Form I-20, Certificate of Eligibility for Nonimmigrant Status is no longer required.
    • How to complete I-9s for EADs automatically extended by Federal Register notice.
    • Guidance for verifying employment authorization for Native Americans born in Canada.
    • Guidance for state employment agencies that choose to fill out I-9s for persons referred.
    • Clarification on the purpose of the Preparer/Translator Supplement.
    • Clarification on determining expiration dates for F-1 and J-1 nonimmigrant employees.
    • How to calculate Form I-9 retention, retention guidelines, and electronic Form I-9 requirements.
  • Starting May 1st, identity documents for List B that are set to expire on or after March 1st may be treated as valid for satisfying the I-9 work authorization document requirements. Employers are instructed to record the document information in Section 2 of the I-9 form’s List B, as applicable, and enter “COVID-19 EXT” in the appropriate field. Within 90 days of the termination of DHS’s temporary policy, the employer is instructed to have the employee present an unexpired copy of the document. Additional instructions are included in the DHS announcement.
  • On April 20th, DHS published a temporary rule to amend certain H-2A requirements. The rule is in effect until August 18, 2020, and impacts how I-9s are completed. The rule creates an automatic 45 day extension for H-2A workers where another employer has filed an extension of stay petition for an individual working for a different employer. The rule provides new guidance for completing the I-9 form for certain agriculture employers who do not participate in E-Verify. Section 2 of the I-9 should include passport information, the unexpired I-94, and the notation “45 DAY EXT.” + the date of the filing of the Form I-129.

The I-9 employer requirements are too complicated for the everyday business activities of hiring, re-hiring, and terminations, as evidenced by the high error rate on the forms. There are all sorts of documents which new hires can present to verify their work authorization, and these can be challenging to sort through. It is hard for employers to keep up on all the details, especially as the agencies constantly update guidance. Social security mismatch letters, E-Verify participation, and government audits are also part of this compliance landscape. We recommend that employers be pro-active in I-9 compliance matters, through scheduled self-audits, regular training, and review of on-line resources. We are available to assist in these matters. Now is a good time to get on top of this, as we expect audits to continue to rise. Many errors are easily corrected.

Wishing everyone the best, as always, as we navigate this difficult time.