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I-9 Inspection Requirements & E-Verify TNC Timelines Are Temporarily Relaxed Amid the COVID-19 Crisis

The federal law requires employers to physically inspect each employee’s Form I-9 documentation to prove their identity and work authorization. E-Verify requires employees to resolve errors in work authorization and identity verification within 8 days, often through in-person office visits to Social Security or USCIS offices. Yet, due to the COVID-19 crisis, many of those offices are closed, and many employees cannot meet employers or SSA and USCIS officers in person due to self-isolation orders or practices. 

Employers have been asking how to comply with I-9 & e-Verify requirements where there are “stay at home” requirements and strong recommendations to work remotely and practice social distancing. The Department of Homeland Security (DHS) just announced that they are temporarily relaxing their I-9 in-person physical inspection requirement and their timeline for employees’ to resolve Tentative Nonconfirmations (TNC’s) in e-Verify.

I-9 Physical Inspection Changes

Where a workplace is entirely remote due to the COVID-19 crisis, employers can review an employee’s I-9 documents remotely (e.g., over video link/call, fax, or email). This still has to occur within three days of employment. Employers should enter “COVID-19” in the “Additional Information” field of Section 2 as the reason for the delayed physical inspection.

Later, when the employee starts working in the office again, the employee must physically show I-9 documentation to the employer within three business days. Then, the employer should add “documents physically examined” and the date of inspection to the “Additional Information” field of Section 2, or to Section 3 (re-verification) as appropriate.

Employers who avail themselves of this option must provide written documentation to the employee of their remote onboarding and telework policy. Thus, if the employer does not have a written policy, they should develop one.

This temporary I-9 policy only applies to employers and workplaces that are operating entirely 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. If the employer has some people still working in the office, but the newly hired employee (or the existing employee who needs an I-9 re-verification) is subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

In addition, these relaxed I-9 measures are only for the next 60 days (through May 19, 2020), or through three business days after the termination of the National Emergency, whichever comes first.

E-Verify Timeline Changes

Employers must still create e-Verify cases for new hires within 3 business days from the date of hire, and they must still use the I-9 information and documentation to complete the e-Verify case. If the case creation date is delayed due to COVID-19 precautions, employers should select “Other” from the drop-down list and enter “COVID-19” as the specific reason.

If e-Verify issues a Tentative Nonconfirmation (TNC), the employer must still notify the employee of the TNC; the employee still has to acknowledge the decision on the Further Action Notice, and the employer still has to notify e-Verify of the employee’s decision as to whether s/he will take action to resolve the TNC.

However, the timeline to resolve the TNC is temporarily extended. The time to take action to resolve a Social Security Administration (SSA) TNC is extended due to SSA office closures to the public. The time to take action to resolve a DHS TNC is extended only if an employee cannot resolve a TNC due to public or private office closures. If the employee can resolve the DHS TNC with USCIS over the phone or through written communication (including electronic communication), then the DHS TNC timeframe remains at 8 days. DHS has not explicitly stated how long the TNC resolution extension is for employees.

Employers may not take any adverse action against an employee because the e-Verify case is in interim case status, including while the employee’s case is in extended interim case status.

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