DHS Again Extends Remote Review of Forms I-9, Issues Additional Guidance

Author: Robert S. Teachout, XpertHR Legal Editor

August 27, 2020

The US Department of Homeland Security (DHS) has announced another extension of the rule relaxation that was granted earlier this year regarding review of documents related to Form I-9 compliance. In addition, the department has authorized the temporary use of an alternate document for verifying an employee's work authorization for I-9 purposes and issued guidance regarding its Deferred Action for Childhood Arrivals (DACA) policy.

In March 2020, DHS announced that it would temporarily relax its Form I-9, Employment Eligibility Verification document review requirements during the coronavirus (COVID-19) pandemic. The exemption allows employers to review employees' identity and employment authorization documents remotely during the national emergency for employees who must telework. The temporary exemption was originally set to expire May 19, 2020, but has been extended by 30 days every month since. The most recent extension, announced last week, will expire on September 19.

Last week DHS also announced that, due to production delays of the Form I- 766 Employment Authorization Documents (EAD card) caused by the COVID-19 pandemic, it is temporarily allowing the use of Form I-797, Notice of Action, as a valid document for Form I-9 verification of work authorization (a List C document). The EAD card, issued by the US Citizenship and Immigration Services (USCIS), temporarily authorizes noncitizens to work in the United States. The Form I-797 must be dated on or after December 1, 2019, through August 20, 2020, and may be accepted until December 1, 2020. By that date, employers must reverify employees who use the Form I-797 using a different List C document.

In addition, DHS issued a new guidance memorandum reconfirming that DACA remains in effect, and that USCIS will continue to receive and process renewal applications but does not accept new applications from individuals who have not previously received DACA benefits.