Will they or won’t they?
That is the question employers and HR professionals have been asking themselves over and over since Form I-9 orders were initially extended in May. The drama saga has stretched on for months and has all the makings of a bad romantic comedy (including last-second plot twists and cringe-worthy mishaps).
So, what needs to happen to bring the main characters – in this case, the government and employers – together and get the happy ending everyone wants?
We turned to EBI’s foremost Form I-9 expert for her insight and best practices for businesses.
The story began in March, right as stay-at-home orders were going into effect. The Department of Homeland Security announced it would allow some flexibility regarding the usually inflexible Form I-9. As we originally explained here, DHS allowed businesses to inspect a new hire’s documents virtually over teleconferencing tools like Zoom or Microsoft Teams.
The provision in question is the requirement to examine all new hire’s documents to determine if a person is legally allowed to work in the country. Federal law mandates this must be done in person, but this temporary guidance allows employers to review documents virtually.
ICYMI: Looking for the full backstory on these Form I-9 extensions? Check out our previous blog.
Form I-9 orders were originally set to expire in May but have been extended numerous times – the latest coming this week. This time at least, employers got the news a few days early. However, the last-second plot twists often leave businesses scrambling and wondering what to do when the extension ends.
We sat down with Courtney Nelson, Product Specialist at EBI, to find out how she sees the final act unfolding.
Q&A and Best Practices
EBI: Has there ever been a series of Form I-9 extensions like this before?
Nelson: The temporary flexibility for completing the I-9 is unprecedented. It was shocking to get the flexibility initially, but to continue extending the temporary guidelines is absolutely unprecedented.
EBI: How has the series of extensions impacted your job? What are some of the most common questions you've been receiving?
Nelson: Even before COVID-19 was in the picture, one of the most popular questions I received was about completing Section 2 and the document inspection using some sort of screen-sharing software. When the temporary guidance was issued, this trend continued as many employers had questions about using this functionality outside of the pandemic.
EBI: Are you able to get all the information you need from DHS and Immigration and Customs Enforcement to assist clients or have you had trouble tracking down answers too?
EBI: What's been your biggest frustration during all of these extensions? Is the will-they-or-won't-they getting tiresome for you (and clients)?
Nelson: One of my responsibilities is ensuring that both internal stakeholders at EBI and our clients are aware of changes to the I-9, its processing, and highlight any important dates surrounding the I-9. To this end, when the government extends the deadline at the last minute, I have to act fast to make sure that messages are updated accordingly and our client-facing teams are aware.
EBI: Are you hearing that employers are worried about catching up on their hiring paperwork in the allotted three-day time frame?
Nelson: The employers that are worried are the ones who were stretched thin prior to COVID.
EBI: Do you think an extension to that three-day time frame would be helpful - why or why not?
Nelson: It’s always nice to have additional time to complete tasks! Despite how ideal it would be to get additional time, I think it’s unlikely to happen.
EBI: What recommendations could you offer clients or businesses on how to best process the backlog of Form I-9 reviews once the extension is terminated?
Nelson: Employers only have three days for in person document inspection once the temporary guidance ends. It makes sense to come up with a plan now, rather than putting it off until the expiration.
EBI: Last time you mentioned employees should monitor the DHS and ICE websites for best practices as they wait for another extension decision. What would be YOUR best practices you could offer clients or other employers?
Nelson: I always adopt the government’s best practices as my own. Employers should follow the DHS and ICE websites for updates on I-9 processing and deadlines.
EBI: We came across this passage in a recent immigration law post:
“Most important is to give employees page 1 of the I-9 to complete AND to give them Page 4 of the I-9 Form to review so they can determine which of their documents to present to the employer. While it may seem easier to tell an employee which documents to bring, this practice can inadvertently lead to citizenship or national origin discrimination, and can be document abuse.”
This point seems especially relevant in today's environment that is focused on equality, diversity and inclusion, and social justice. Is it important in your opinion? How many employers do you think take this into consideration and should more do so?
Nelson: This passage is incredibly important as employers are not allowed to tell employees what documents to bring for the Form I-9. Many employers don’t realize that employees get to decide what documents to bring and should review their practices to ensure that they are not requesting certain documents.
EBI: Is it possible that the Form I-9 process will forever and permanently be changed by this pandemic?
Nelson: It’s tough to say if COVID-19 has permanently changed I-9 processing. Getting the flexibility, even if temporary, was monumental; to have these changes be permanent seems like a pipe dream.
EBI Can Help
As the will-they-or-won’t-they plot line continues with each extension deadline, you can count on EBI to keep you informed. Consider us the friendly voiceover narrator every romcom relies on to push the story forward.