Temporary I-9 Policy Change

We have discussed the Form I-9 on more than one occasion in the past year, largely due to the updated form.  Nevertheless, here we go again, with temporary I-9 policy changes to the verification documents.

So, in case you aren’t familiar with the I-9, here is the backstory.  Also, we’ll detail the policy changes so that you’ll be current with the requirements.

What is the I-9, and how has it changed?

Now, there are many documents employers must provide to new employees for completion.  One such form is Form I-9, which is the document that verifies an employee’s identity and eligibility for employment.  This document became a permanent fixture in the new hire packet inn 1986, after legislative changes when the Immigration Reform and Control Act mandated its inclusion.  The form is the government’s way of assuring that paid U.S. employees are who they say they are. Furthermore, it shows that employees may legally work in this country.

Read on to find out about the changes.

Who should complete the I-9?

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Anyone who receives compensation for performing a job or duty in the U.S. should complete an I-9.  The one exception to that is individuals whose hire date was prior to November 7, 1986.  If those employees are continuing their employment since that date of hire, then they will not have an I-9 on file.  

There are no changes regarding who is required to complete the I-9.

When should an employer request the I-9?

Employers should provide the I-9 as the first document after making a job offer, and after the employee has accepted the offer.  The document should be completed and signed prior to the end of the first day of employment.  Furthermore, employers are required to review the form for completion, and inspect the identity documents in person.

There are no changes regarding the length of time in which the I-9 must be provided and completed.  However, there is a change to the inspection process.  Details below.

Where should the I-9 be stored?

Employers should keep I-9s as part of their employment records for three years after the hire date.  Compliance requirements mandate employers to keep the I-9 for one year after an employee’s termination. Or, whichever is the latter of the two circumstances.

There are no changes regarding the length of time an employer should keep the I-9.

What are the components of the I-9?

There are three sections on the I-9 form:

  1. Employees must complete Section 1 of the I-9,
  2. Employers use the employee’s identity documents to complete Section 2.
  3. Finally, if an employer rehires a former employee, they can use the existing I-9 to complete Section 3.

As you can probably imagine, after states lift stay-at-home orders, there will likely be many employers completing section 3.

To complete Section 2, there are three lists of acceptable forms, and the following page of the I-9 packet lists details.  First, List A includes documents establishing both identity and employment eligibility.  Next, List B includes documents that establish identity only.  Then, List C includes documents that authorize employment only.  All documents from these lists should have an expiration date that has not yet been reached.

There is a change to the identity document requirements.  Details below.

Why are there changes to the I-9?

Due to the COVID-19 pandemic, many people are still under stay-at-home orders.  Furthermore, many companies have shifted the way they are processing documents.  For example, the Department of Motor Vehicles has temporary restrictions on the way they are processing driver’s license renewals.  So, if you are trying to get a job, but your license is expired and you can’t get it renewed because of the process changes at the DMV, that’s a problem.  Unfortunately, the Department of Motor Vehicles is not the only entity experiencing these kinds of issues at the moment.

In response to this, the Department of Homeland Security (DHS) temporarily changed the policy, allowing employers to accept expired identity documents from List B .  This is only for those documents that expired on or after March 1, 2020.  So, those expired documents will be considered valid, when the previously hadn’t been.

Furthermore, due to the high volume of remote operations, employers are temporarily permitted to bypass in-person document inspection.  This is a welcomed change for employers, who still must verify identity.  Notably, once normal business operations resume, employers will need to inspect all documents in person within three business days.  The in-person inspection requires employers to complete an additional entry on the form.

How will the process change affect the future of the I-9?

As of now, the process changes for the I-9 are only temporary.  These changes are in response to mass changes in processes across all industries.  So, if your newly hired employees have identity documents from List B, know that you can accept them for the time being.  Additionally, employers may inspect documents from afar. 

Unfortunately, no one knows for certain how long this will last.  Hopefully, this temporary policy change will be a relief for employers and employees who are trying to keep things moving during this challenging time.

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Photo by Geralt

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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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