As Governor Newsom ordered several sectors to once again shut down its in-person California operations this week, many employers are still grappling with how to comply with myriad state and federal mandates while operating remotely. One area that continues to present challenges in the remote context is immigration compliance.
Back on March 19, 2020, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the Immigration and Nationality Act due to precautions implemented by employers and employees associated with COVID-19.
This meant that employers operating 100% remotely due to COVID-19 can comply with the requirement to physically examine documents upon hire or rehire to inspect Section 2 identity and employment eligibility documentation remotely (e.g. via email, video link, or fax) within three business days of hire. The employer must retain copies of these documents and verify in-person once normal business operations resume. Following the physical review, the employer should enter “COVID-19” in Section 2 “Additional Information” field as the reason for the physical inspection delay. They should also state “documents physically examined” followed by the date of inspection in either Section 2 or Section 3 as appropriate.
These exceptions are not available if employees are physically present at a work location. The original provision has been extended again and is expected to expire on August 19, 2020. The original guidance including eligibility requirements can be found here.
Do I Need a New Form I-9 When Rehiring Employees?
Employers can rely on a previously completed Form I-9 if rehiring within three years. Thus, if the employer is simply re-hiring employees who were previously laid-off at the beginning of the pandemic, there is probably no need to fill out a new Form I-9. According to the USCIS Handbook for Employers, employers must follow certain guidelines to rely on a previously completed Form I-9:
- Employees whose employment authorization status hasn’t changed from their previous Form I-9 don’t need to provide additional documentation. Just provide the rehire date and any name changes in Section 3, and sign and date the form.
- For employees whose Section 3 of the previously completed is already used, but you’re rehiring them within three years of that Form I-9’s original execution, you may complete Section 3 on a new Form I-9 and attach it to the previously completed form.
Also, as a reminder, beginning May 1, 2020, employers can only use the October 21, 2019 version of the Form I-9, which expires October 31, 2022 and found here. Be sure that your hiring team is using this updated form. For re-hired employees, whose previous Form I-9 indicates that employment authorization has expired, you must reverify employment authorization in Section 3 and provide the rehire date. If the previous Form I-9 is not the current version, you must complete Section 3 on the current version.