ICE and DHS Employer COVID Guidance You Need to Know

The Immigration Reform and Control Act of 1986 (IRCA) requires employers in the U.S. to complete the ‘Form I-9, Employment Eligibility Verification’ for all new hires to verify their identity and employment authorization to work in the country. Both employers and employees must complete the form.

On March 19, 2020, due to precautions implemented by employers and employees associated with COVID-19, the DHS announced it would exercise prosecutorial discretion to defer the physical presence requirements of the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act (INA). The policy only applies to employers and workplaces that are operating 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 for ‘Form I-9, Employment Eligibility Verification.’

The policy was implemented for 60 days and set to expire on May 19, 2020. The DHS extended it for 30 additional days four times to June 19, 2020, July 19, 2020, August 19, 2020 and September 19. 2020. On September 15, DHS and ICE announced another extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to ongoing precautions related to COVID-19, this time for 60 days through November 19, 2020.

What the I-9 Verification Extension Means for HR

Employers who avail themselves of the remote E-Verify option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers and ICE guidelines are specific with regards to what these policies must contain. By working with a vendor partner, your company can ensure that your policy is not only compliant, but it is also on file with the accompanying employee eligibility information.

With remote hires, identity authentication is even more critical as your HR team is unable to assess original documents in person. That’s where artificial intelligence (AI) technology such as Cisive’s IDVerity tool can help mitigate the risk of fraud and impersonation. Cisive’s solution forensically authenticates a candidate’s identity by validating the authenticity of their government-issued ID and then comparing it to the candidate’s self-photograph taken from their mobile device. An AI-powered tool is a simple and affordable way to verify the identity of your candidates.

The Form I-9 is a time-sensitive document that must be completed by the third business day of an employee’s hire date, and it is essential that the information is complete and accurate. Problems arise when either the employee or employer enters inaccurate information, putting the employer at risk for fines due to the I-9 not being completed correctly. By using an electronic system capable of handling I-9s for remote hires, such as Cisive’s Electronic Form I-9 and E-Verify solution, you can ensure that the information entered on from both parties matches and is correct. Using an electronic I-9 system can assist your company in maintaining compliance even when you use an authorized representative who is not familiar with I-9s. This is accomplished by properly walking users through each step of the process and alerting them to any potential errors as they complete the form.

Since so many employers are working with remote new hires, a virtual hiring experience is essential. Cisive’s onboarding solution allows remote applicants to complete onboarding documents such as employment applications and direct deposit forms. It also provides a real-time view into the status of current and past background checks and offers a customizable dashboard that enables your HR team to easily manage tasks associated with the new-hire process.

What Happens After the I-9 Extension Ends?

It is possible that ICE and DHS may announce another extension depending on the state of the COVID-19 pandemic, but as it stands currently the remote flexibility option for I-9s will end on November 19, 2020.

Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

Depending on the size of your organization and the number of remote hires since March of 2020, this could be a formidable task for your HR team. However, your vendor partner is an authorized representative for your company and can ensure that the updated documentation after the extension expires is completed and supplied with updated Form I-9s.