We’re all alone together right now, and while so many companies are laying off or furloughing employees, some are still hiring. One thing that hasn’t changed: all employees must be eligible for employment in the United States. That’s where the I-9 Employment Eligibility Verification form comes in. As part of the federal immigration regulatory process, each new hire must complete this form and provide documents to verify identity and employment authorization. You then keep those documents in case they resurface as part of an I-9 audit.

In an I-9 audit, Immigration and Customs Enforcement (ICE) serves a Notice of Inspection, which requires a company to make their I-9 forms available for inspection, sometimes in only a matter of days. If your I-9 forms aren’t in order, hefty fines could be levied against your business! Fortunately, the team at YES! Your Human Resources Solution has an arsenal ready to help you conquer I-9 compliance before ICE comes knocking. For starters, follow these basic I-9 compliance tips, and read on for COVID-19—related changes:

• Ask each job seeker whether he/she is authorized to work in the United States. Do not ask about place of birth or national origin.
• Have each new hire fill out a Form I-9 within three days of starting work.
• Be sure the documents that confirm identity and authorization to work are included in the lists on the back of the I-9 form, and that they appear genuine. Accept originals only. Support document retention is not required in California, but discussion with your company employment counsel should be sought before deciding to whether to retain supporting documents.
• Never alter an existing I-9 (except as noted for COVID-19 extensions).
• Store I-9s for current employees in alphabetical order in one filing area. Store I-9s for terminated employees in chronological order in a separate filing area.
• Keep I-9s on file at least three years for current employees, and at least one year after an employee has left the company, whichever is longer.

During this tumultuous time of COVID-19 and closed government offices, it may be difficult for employees to provide List B documents (commonly, state ID cards or driver licenses) with valid expiration dates. To account for the inability to renew documents, the Department of Homeland Security (DHS) has issued a temporary policy to allow employers to accept expired List B documents for I-9 purposes beginning May 1, 2020. Then again, not all states have agreed to extend the expiration dates, which has led to different follow-up procedures. (To find out if your state has extended, check your local DMV, MVA, or MVD website. At the time of this posting, California has extended non-commercial driver licenses through May 31.)

If List B Expiration Dates Have Been Extended
If the employee’s List B document expired on or after March 1, 2020, and if the issuing authority has extended the document expiration date because of COVID-19, the document is acceptable as a List B document for Form I-9 during the extension time frame specified by the issuing authority. In such case, employers should:

• Enter the document’s expiration date in Section 2, and
• Enter “COVID-19 EXT” in the Additional Information field.

As reference, employers may also attach a copy of the webpage or other notice indicating the expiration extension. The employee is not required to present a valid, unexpired List B document later.

Employers participating in E-Verify should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case within three days of the hire date. Even if a state has automatically extended the employee’s driver license because of COVID-19, employers should enter the expiration date as printed on the employee’s document when creating the E-Verify case.

If List B Expiration Dates Have NOT Been Extended

If the employee’s List B document expired on or after March 1, 2020, and if the issuing authority has NOT extended the document expiration date because of COVID-19, the document may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. In such case, employers should:

• Enter the document’s expiration date in Section 2, and
• Enter “COVID-19” in the Additional Information field.

The employee is required to present a valid, unexpired identification document within 90 days of DHS ending the temporary extension policy. (It is best if the employee can present the replacement for the expired document, but the employee may choose to present a different document or documents.) Then employers should:

• Record the new document’s information in the Additional Information field, and
• Initial and date the change.

As you can see, maintaining valid I-9 forms will require some diligence and possible follow-through! To ensure continued compliance, we recommend an annual internal review of all I-9 files. And of course, I-9 review is also part of the comprehensive Human Resources audit that keeps you from being blindsided.

The experienced HR professionals at YES! Your Human Resources Solution can help you prepare. We’ll review your employee data and eligibility forms for compliance, and we’ll make recommendations to help your business avoid costly penalties. (Don’t forget to talk to your legal team about the final changes!)  And that’s just one of the many benefits of a comprehensive YES! HR audit. Discover how your business can put our firepower to work for you. Visit our website or contact us today for a free consultation!