The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers to complete a Form I-9 upon hiring a new employee to work in the United States. Civil and criminal fines and penalties may be imposed on a business for employing undocumented workers, and individuals responsible for IRCA compliance can even be held personally liable.
Form I-9 requirements are technical in nature and require careful attention by employers to ensure compliance. By way of example, an employee must complete Section 1 of Form I-9 by his or her first day of work, and the employer must complete Section 2 by the end of the third business day, or within 72 hours after employment commences. Employers or the employer’s authorized representative also must physically examine the employee’s Form I-9 documents in order to comply with the government requirements before signing the form under penalty of perjury.
On March 20, 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced flexibility in complying with the physical inspection requirement for Form I-9 documents due to the COVID-19 pandemic. DHS also provided examples to show employers how to notate Form I-9 when remotely inspecting employment authorization and identity documents pursuant to the temporary COVID-19 rule.
Additionally, DHS noted that COVID-19 stay-at-home orders may have created challenges for employees to renew their driver’s license, a state ID card, or other Form I-9 documents, and thus DHS also issued a temporary policy regarding permitting employers to rely on expired List B identity documents used to complete Form I-9.
The Form I-9 requirement flexibility has been extended numerous times, and is extended once again through October 31, 2022. The DHS notice announcing the extension also states that “[e]mployers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”
However, effective, May 1, 2022, employers are no longer permitted to accept expired List B documents, and must only accept unexpired List B documents. DHS reasoned that it was time to roll back the temporary policy now that document-issuing authorities have reopened and/or provided alternatives to in-person renewals.
Employers are well advised to periodically audit their Form I-9 compliance with experienced counsel, especially given the challenges exerted into the process as a result of the COVID-19 pandemic.
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