I-9 Extension: New Deadline for Form Flexibility

From a payroll and HR standpoint, the I-9 must be one of the hottest trending topics!  It seems like we can hardly go a month without someone mentioning a change to the I-9, or some other I-9 policy update.  Now, we’ve just received word that there is going to be an I-9 extension to the I-9 policy we had reported on several months ago.

To get you up to speed, here is all you need to know about the I-9, as well as the information about the I-9 extension. 

Recapping the I-9

To recap, employers must provide a slew of documents for completion and signatures to newly hired employees.  The document that verifies and employee’s identity and employment eligibility is the IRS Form I-9.  The document became a part of the new hire packet in 1986, due to legislative changes with the Immigration Reform and Control Act.  The government uses the form to assure that employees are who they claim to be, and that they can work legally in the United States.

Who Receives the I-9

Individuals performing a job or duty in the U.S. and receiving compensation for their work should complete an I-9.  The exception is individuals hired prior to November 7, 1986.  Employees hired before then will not have an I-9 on file.  

Completing the I-9

For starters, the I-9 is the first document employers provide after the employee has accepted a job offer.  Then, the employee then completes and signs the document prior to the end of the first day of employment.  Finally, the employer reviews the form for completion, and inspects the identity documents in person.

I-9 Records

Employers keep completed I-9s in employment records for three years after the hire date, and one year after employee termination.  Or, the latter of the two—whichever is longer.

These are the things you need to know about the history of the I-9, as well as the process for completing and saving the document.

Components of the I-9

Image of the IRS Form I-9, which will have flexibility extended until 08/19/2020.

If you look at the document, you’ll notice the I-9 form has three sections:

  1. Employees complete Section 1 of the I-9.
  2. Employers complete Section 2 using employee identity documents.
  3. If an employer rehires former employees, they use the existing I-9, completing Section 3.

There are three lists of acceptable forms to complete Section 2, with details available on the following page of the I-9 packet.  List A includes documents establishing both identity and employment eligibility.  Then, List B includes documents that establish identity only.  Finally, List C includes documents that authorize employment only.  All documents from these lists should have a future expiration date, and not a date that has expired.

Past Changes to the I-9

As the COVID-19 pandemic spread and people were under stay-at-home orders, many companies adjusted policies.  The purpose was to continue with commerce, while still trying to maintain social distancing to prevent the spread of the disease.

So, the Department of Homeland Security (DHS) issued a temporary change to the identity verification policy. The revised policy allowed inclusion of expired identity documents from List B. This was only for documents expiring on or after March 1, 2020.  So, those expired documents were to be considered valid, when they previously hadn’t been.

Also, as companies were relying increasingly on remote operations, employers were temporarily permitted to bypass in-person document inspection.  Employers were grateful for this flexibility with the form, even as they were still required to verify identity.  Of course, once normal business operations resume, employers will be required to inspect all documents in person within three business days. 

I-9 Extension

As previously mentioned, the process changes for the I-9 are only temporary.  The changes were in response to mass changes in processes across all industries.  At the time of the changes, the DHS and ICE (Immigration and Customs Enforcement) decided the temporary changes would last until July 19, 2020.  Originally, the I-9 extension expiration date was in May, and then they revised the extension again.  However, these entities have decided to, yet again, extend the deadline 30 additional days.  So, if newly hired employees have identity documents from List B, employers can accept them through August 19.  Also, employers may continue to inspect documents remotely.  It’s important to note that employers who received notices of inspection (NOIs) in March will not receive another extension.

Change, Pivot, Flex

If nothing else, we are learning that this time of uncertainty warrants a lot of patience.  We will experience sudden changes, so the right thing to do is pivot and be flexible.  The same is true for the processes and documents which have been a staple in the business place for a very long time.  The I-9 extension of 30 additional days for the form flexibility is just one example of how we are learning to take things one day at a time.

Image of a man sitting on a rock in the middle of a stream in the lotus position, being flexible and patient.
Photo by Shyamjii | Source

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This is not meant to provide legal counsel or advice. Every situation is different. Please contact an HR professional or employment attorney before taking any action.

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