*This is an update to a blog originally posted September 18, 2020.
We are in the middle of one of the largest hiring surges since the pandemic hit and employers are still struggling with one important question: When will they need to verify Form I-9s in person?
The latest Form I-9 extension is set to expire on August 31, 2021. That means employers must perform in-person inspections of these documents starting September 1, 2021, and employers only have three days to complete inspections once the temporary guidance ends. However, the Department of Homeland Security has extended this flexibility several times – often at the last minute leaving employers scrambling.
The will-they-or-won’t-they saga has played out like a bad romcom, and we still don’t know the end of the movie. While we wait to see if employers will be granted another last-minute plot twist, we thought it would be helpful to re-visit a blog where one of our EBI experts provided tips to help businesses get the happy ending they want.
The provision in question requires employers to inspect a new hire’s I-9 documents to determine if that employee is legally allowed to work in the country. Federal law mandates this must be done in person. However, in March 2020, right as stay-at-home orders were going into effect, DHS relaxed this rule to allow employers to inspect I-9 documents virtually for new hires who are working 100% remotely.
This Form I-9 flexibility does not apply to in-office employees; They must present I-9 documents to employers for in-person inspection.
Form I-9 orders were originally set to expire in May 2020 but have been extended numerous times. However, the last-second plot twists often leave businesses scrambling and wondering what to do when the extension ends.
ICYMI: Looking for the full backstory on these Form I-9 extensions? Check out our previous blog.
We sat down with Courtney Nelson, Product Specialist at EBI, to find out how she sees the final act unfolding.
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. 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 the Form I-9 process will be permanently 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.
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.
Writer. Digital marketer. Storyteller. An award-winning writer and editor, Tricia O'Connor is the Marketing Content Manager at EBI. Tricia worked as a broadcast and print journalist for nearly two decades writing and producing programming for high-profile networks like ESPN Radio, History Channel, and Hallmark Channel, as well as contributing editorial work to publications nationwide. Tricia joined the EBI marketing team in 2019 and is responsible for content strategy, development, and engagement. Tricia earned a master's degree in journalism from the Medill School of Journalism at Northwestern University and is a proud undergraduate alumna of Wheaton College in Massachusetts.