COVID-19 Provides Employers with Continued I-9 Flexibility
COVID-19 has caused unprecedented delays in the production of certain employment authorization documents. Both the DHS and ICE have continued with their department's flexibility relative to I-9 documentation and completion.
I-765 Approval Notices
In response to such delays, the USCIS is allowing employers to accept Form I-797, Notice of Action with a date on or after December 1, 2019 through August 1, 2020 to update Form I-9, Employment Eligibility Verification and show continued work authorization.
Prior to this announcement, the USCIS did not allow employers to accept the Form I-797 Notice of Action, which indicates an I-765, Application for Employment Authorization had been approved, for purposes of I-9 completion. Instead, employers could only accept a valid Employment Authorization card.
Employers seeking to take advantage of the I-9 flexibility must ensure the following:
- The I-797, Notice of Action must explicitly indicate it is an approval of an Application for Employment Authorization (Form I-765);
- If the first requirement is met, the I-797 can be listed as a List C document—specifically under item number seven.
This flexibility is valid only through December 1, 2020. Employers must also keep detailed records and update an employee I-9 once they receive their employment authorization cards. Employers should also be aware this flexibility does alter the employee's duty to establish his or her identity by presenting a document from with List A or List B.
Remote I-Completion Extended
ICE extended its May 19, 2020, guidance allowing remote completion of the Form I-9 for an additional 30 days. As a reminder, ICE has deferred the in-person review of original documents during the pandemic. The waiver only applies to offices that are operating remotely. Employers must promptly comply with their normal I-9 requirements as soon as employees return to the office. The remote completion authorization is set to expire on September 18, 2020.
About the Author: Alejandro Pérez is a partner at the Phoenix law firm of Jaburg Wilk. He assists clients with employment law issues including hiring, termination, employee discipline, paid sick time, leaves of absence, wage and hour compliance, and whistle-blower liability. Alejandro also conducts workplace training on a variety of topics, including sexual harassment, discrimination, and workplace inclusivity.