How Your Company Can Comply with the Form I-9 and E-Verify Requirements in Light of COVID-19

As the coronavirus (COVID-19) changes employers’ on-boarding processes, here are the latest developments to ensure your company is complying with both the employment eligibility verification form (the “Form I-9”) requirements and E-Verify during remote on-boarding.  Below guidance is provided by the Department of Homeland Security (DHS), specifically U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE).

  • The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19.  The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.  However–in light of COVID-19–the government is suspending the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example. However, employers will need to view the document(s) at a later date and note the physical inspection of the document(s) on the Form I-9.  This is a limited exception to the general rule. IMPORTANT — employers are still required to complete the Form I-9 within three business days of hire.  The “remote verification” exception is only intended to accommodate the realities of remote on-boarding in the current COVID-19 world.
    • Click here for details as to how your company must comply to benefit from this guidance, both now and in the future (when normal operations resume).
  • An employer must still create a case in E-Verify within three business days from the date of hire, and employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. However, 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.
  • 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 DHS TNCs in limited circumstances when an employee cannot resolve a TNC due to public or private office closures.
  • All local Social Security offices are closed to the public for in-person services. Meaning, employees will not be able to apply for/receive a Social Security Number (SSN) during this time period.  If you are an E-Verify employer, this will mean the employee cannot provide their SSN in section 1 and you will need to suspend creation of a case in E-Verify until such time as you have the employee’s SSN.
  • ICE announced that, effective March 19, 2020, any employer who was served a Notice of Inspection (NOI) during the month of March 2020 and who has not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.
    • Many employers found that during March 2020 ICE engaged in enforcement operations, issuing NOIs to employers nationwide.

AGG will continue to monitor I-9 and E-Verify guidance issued by DHS and related to COVID-19. For more information, please contact Montserrat C. Miller.