California Labor &
Employment Law Blog
COVID-19 Related Changes to Immigration Employment Verification
Mar. 25 2020

COVID-19 Related Changes to Immigration Employment Verification

Topics: COVID-19, Immigration

On Friday March 20. 2020, the Department of Homeland Security announced two temporary changes to the immigration employment verification process resulting from COVID-19 and the associated State of Emergency.  DHS’ Immigration and Customs Enforcement suspended the in-person document review requirement for employers in COVID-19 affected regions.  Additionally, due to the closure of Social Security Administration’s public offices, E-Verify has lengthened the amount of time an employee has to respond and resolve a Tentative Non-Confirmation.

The Immigration and Nationality Act requires employers to verify that their employees are authorized to work in the United States.  This process requires an employer to physically inspect the documents an employee produces as evidence of employment authorization within three days of the commencement of work.  Employers affected by COVID-19 National State of Emergency and related movement restrictions are still required to inspect documents.  However, they may inspect the documents via fax, e-mail, or video link.  Employers and employees must still complete an I-9 within three days of commencement of work.  Employers should note the date of the electronic inspection of the documents along with the note “COVID-19” in part 2 of the I-9 form.  Actual physical inspection of the documents must occur within three days of the lifting of National Emergency.  The I-9 form should be annotated once the actual physical inspection of the documents occurs.  Employers should keep a list of employees hired during the State of National Emergency and contact them once the emergency orders are lifted.

Everify is a joint DHS – Social Security Administration project that serves to verify the employment authorization status of US workers.  Employers submit their newly hired employee’s information to eVerify for confirmation of their newly hired employee’s employment authorization.  Employers that receive a Tentative Non-Confirmation from eVerify direct their employee to the Social Security Office to resolve the issue.  Due to the closure of the Social Security Administration’s public offices, eVerify is extending the length of time an employee remain in Tentative Non-Confirmation Status.  Employers who participate in eVerify and receive a Tentative Non-Confirmation may not take an adverse action against an employee because their employee is in an interim or tentative state.  Once the State of Emergency is lifted and Social Security offices reopen, the extensions of interim status will stop, and employees will be required to resolve the discrepancy with Social Security.

About CDF

For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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