U.S. Citizenship and Immigration Services (USCIS) recently issued a follow-up Question and Answer sheet   (Q&A Sheet) to the  March 20 announcement of the U.S. Department of Homeland Security (DHS) related to a limited relaxation to physical proximity requirements associated with Form I-9 completion due to COVID-19.  While the acceptance of an expired state identity document for List B purposes based on state modifications is welcome, there is ongoing uncertainty for employers who have a combination of some of the workforce on site when trying to implement a procedure for remote document verification after the release of the Q&A Sheet.

Section 2 Expired Identity Documents

In recognition of the closure by many states of their driver’s license offices and the decision by many states to suspend or extend driver’s license renewal, the Q&A Sheet provides that, “if an employee’s state ID or driver’s license expired on or after March 1, 2020, and the state has extended the document expiration date due to COVID-19, then it is acceptable as a List B document.”

USCIS recommends that the expiration date of the expired State ID or driver’s license be entered in Section 2 of the Form I-9 with a reference to “COVID-19 EXT” in the expiration date blank along with a note in the additional information field of Section 2.  For an example of the date and annotation, see below:

Note that it would not be necessary to reverify the validity of the identity document post the expiration of the state COVID-19 policy or order, since the document would be deemed as valid at the time of its presentation when expired.  The complex part of this temporary policy is that each state’s policy/order must be considered.  For example:

Texas – Applies to Texas DL, ID, CLP, CDL card or EIC if it expires on or after March 13, 2020.  The waiver of the expiration date is for 60 days after the Texas Department of Public Safety provides further public notice that normal operations have resumed.

Michigan – Applies to Michigan ID and DL if it expires between February 1 to May 31, 2020 and suspends the necessity to extend until June 30, 2020.

Arizona – Applies to Arizona ID and DL if it expires between March 1, 2020 and September 1, 2020 and extends renewal requirements for six months from the expiration date.

These extension/suspension policies will provide some relief to those nonimmigrants with work authorization visas, who are submitting extension applications without the benefit of premium processing; especially in states, which require an approval of the extension by USCIS to extend a driver’s license.

Delays in Social Security Number Assignments

It is important to remember that only E-Verify employers are mandated to obtain the social security number of a new employee to complete Section 1 of Form I-9.  A new hire may still start employment, however, for even an E-Verify employer without a social security number.  The following guidance  is provided by the E-Verify website:

Newly hired employees must complete Section 1 of Form I-9 in its entirety on the first day of employment. They may complete Section 1 before this date, but only after acceptance of an offer of employment. Under general Form I-9 practice, employees can voluntarily provide their Social Security numbers (SSNs) on Form I-9. However, because SSNs are required for employers to create E-Verify cases, all employees whose employment eligibility will be verified in E-Verify must provide their SSNs.

If a newly hired employee has applied for, but has not yet received an SSN (for example, the employee is a newly arrived immigrant), attach an explanation to the employee’s Form I-9 and set it aside. Allow the employee to continue to work and create a case in E-Verify using the employee’s SSN as soon as it is available. If the case was not created by the third business day after the employee started work for pay, indicate the reason for this delay. Employers may choose a reason from the drop-down list or state a specific reason in the field provided.

Remote Completion and E-Verify

Q6 of the Q&A Sheet clarifies that when the remote inspection process for Form I-9 is used by an employer based on the March 20 announcement, the employer should use the following protocol as to E-Verify:

After they inspect the employee’s documents remotely and determine whether the documents reasonably appear to be genuine and relate to the employee, they should create an E-Verify case for the employee. They should still follow current guidance and create the E-Verify case for their new hire within three business days from the date of hire. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. 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.

Remote Completion and the Case-by-Case Provision

The March 20 announcement stated that the relaxation of the requirement to review the documents of new hires in person applied to “employers and workplaces” that are operating remotely.  The announcement provided a possible expansion of this practice to locations where newly hired employees OR existing employees were subject to quarantine or lock-down protocols, with the warning that DHS would review employer’s practices on a case-by-case basis.

The apparent intended example of this remote relaxation applies to new hires who are going to be working remotely when the physical worksite is closed due to COVID-19.   When employees are still working at the normal worksite, it appears the expectation is for one of these individuals or an on-site agent to complete Forms I-9 for new hires at the worksite location.   For larger operations, however, with a mixture of employees at a worksite and telecommuting from home based on the essentiality of their physical presence at the worksite, companies are faced with using well-trained human resources staff who may be performing their duties from home while other employees, for example in the healthcare industry, are in the trenches at the worksite.

For employers, who might have chosen to use this case-by-case option to implement regarding the remote completion of Forms I-9 when, for example, human resources personnel were subject to shelter in place directives for an operational worksite; the New Q&A Sheet notes the following:

 Q7. In the DHS March 20 announcement, the option for remote inspection only applies to remote workers.  What if I have employees working both remotely and reporting in person to work?

 A. The current DHS guidance allows for flexibility only when completing a Form I-9 for a new employee that is only working remotely, but as stated in paragraph five of the DHS news release, “…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.”

So, Q7 indicates that the March 20 announcement was meant to apply only to a “remote” worker situation versus a case in which existing employees may be subject to COVID-19 isolation protocols implemented by a national, state, or local policy.  It would be helpful to address the obvious issues of existing employees, who were encouraged/required to work from home due to COVID-19 policies whether based on a government executive order or company policy.  While Q7 emphasizes the prior “case-by-case” review alternative of DHS, if a company with employees at a worksite uses the remote completion alternative for its Forms I-9; it will be critical to address why the remote completion protocol was implemented for review by DHS.  Some suggested documentation points could be:

  1. Company policies and announcements as to requirements or recommendations to work from home due to COVID-19.
  2. Government mandates/orders regarding shelter in place as to COVID-19.
  3. Company memoranda regarding the remote Form I-9 completion process.
  4. Company lists of employees to be verified post resumption of on-site operations.
  5. Emails or other communications to new hires subject to a remote Section 2 completion for the follow-up required to review the originals of their documents scanned/faxed to the company for Section 2 completion during the temporary COVID-19 related completion process.

About the Author:

Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group.  She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  She serves on the AILA Board of Governors.  In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950).  She has testified several times before Congress on matters of immigration policy and border security.