Articles Discussing Employment Eligibility For Non-Citizens.

Dear Littler:  We are a multi-state manufacturing company with facilities throughout the United States.  Like many companies, we have experienced a great deal of employee turnover in the last few years.  Many of our employees are immigrants. As we are advertising for and hiring new employees, can we require

The U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), recently extended until July 31, 2023, the temporary policy allowing remote verification of Form I-9 documents for employees working exclusively in remote settings due to COVID-19–related precautions.

In 1986, the Immigration and Nationality Act (“INA”) was amended to require all employers to verify the employment eligibility of all newly hired workers. The regulations interpreting the INA require employers to physically inspect the documents employees present as evidence of employment authorization.

On March 20, 2020, ICE suspended the physical inspection requirement. The requirement was suspended to accommodate employers facing COVID-19 pandemic lockdowns and the proliferation of remote work. ICE permitted employers to inspect I-9 documents over video link, fax, or email, and obtain, inspect, and retain copies of the documents within three business days of hire. In its announcement, ICE warned that these changes were to be temporary. ICE advised that at the conclusion of the pandemic, employers would be required to physically inspect the employment eligibility documents for all employees hired under remote inspection. ICE threatened that employers that did not physically inspect employment eligibility documents within three days after the expiration date of the temporary rule change would face fines and other penalties.

ICE has extended the expiration date of the remote verification rule change several times. Most recently, on October 11, 2022, ICE extended the pandemic accommodation until July 31, 2023. However, in the press release announcing the extension, ICE hints that this may be the last extension. The press release states:

“Employers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

While it would seem that commencing in-person I-9 document verification now would be prudent, any employer contemplating taking such an action should consult counsel and tread very carefully. Employers have no authority to demand the production of I-9 documents while the accommodation is in place. Employees may greet such a request with hostility, see it as a threat to their continued employment, or assert that it creates some kind of illegal harassment or discrimination.

On October 12, 2022, the USCIS announced that employers should continue to use the current Form I-9 after its expiration date of October 31, 2022, until further notice. It is anticipated that the Department of Homeland Security will publish a new one-page Form I-9 in the coming months. Thus,

The Department of Homeland Security (DHS) will continue Form I-9 flexibility for another nine months until July 31, 2023, according to an announcement. DHS guidance remains the same. Employees who, due to COVID-19 policies, do not report to a physical location on a regular, consistent, or predictable basis continue to be

Since March 2020, the USCIS has allowed virtual, remote I-9 verification where all employees are working remotely due to COVID, or when a new employee, post April 1, 2021, is working remotely due to COVID. Many employers as well as immigration attorneys have been clamoring for virtual, remote I-9

On August 18, 2022, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would grant it broader authority to permit alternative document inspection procedures for I-9 document verification in lieu of the physical inspection requirement.

For more than two years, due to the COVID-19 pandemic, the Department of Homeland Security (DHS) has been allowing employers with remote workers to review Form I-9 Employment Verification Authorization documents virtually over video link or by fax or email. That flexibility is set to expire on October 31, 2022.

The July 31, 2022 deadline is rapidly approaching for employers to update the Forms I-9 of employees who presented an expired List B document (establishing the individual’s identity) between May 1, 2020 and April 30, 2022. As you may remember, the Department of Homeland Security (DHS), through the USCIS,

Employers whose employees presented expired List B documents for Form I-9 Employment Eligibility Verification purposes between May 1, 2020, and April 30, 2022, must update Form I-9 with unexpired documents by July 31, 2022.

Since COVID-19 prevented various issuing authorities from renewing documents on time, DHS temporarily instituted a policy

Employers that accepted expired Form I-9 employment eligibility verification documents under the U.S. Department of Homeland Security’s (DHS) policy of flexibility during the height of the COVID-19 pandemic must update their Forms I-9 by July 31, 2022, the department confirmed.

The Department of Homeland Security (DHS) is considering making a change which would permanently allow the flexibility it has extended over employers’ verification of employees’ identity and employment eligibility since March 2020.

Historically, Form I-9 has required employers to physically inspect original documentation presented by employees in a face-to-face interaction.

The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers to complete a Form I-9 upon hiring a new employee to work in the United States. Civil and criminal fines and penalties may be imposed on a business for employing undocumented workers, and individuals responsible for IRCA compliance can even be held personally liable.

Normally, the U.S. Department of Homeland Security (DHS) regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the Employment Authorization Document (EAD) for applicants within certain employment-eligible categories who have a timely filed and pending request to renew employment authorization

As of May 4, 2022, the Department of Homeland Security (DHS) is increasing the automatic extension of work authorization from 180 days to 540 days for certain individuals.

Currently, certain individuals with expiring employment authorization documents (EADs) can continue working for an additional 180 days as long as they have