COVID-19 Causes U.S. Department of Homeland Security to Announce Flexibility Regarding I-9s for Remote Employers

As employers are aware, each time a new employee is hired, the employer must verify the individual’s authorization to work in the United States and complete a USCIS Form I-9. As part of this process, new employees must present original documents to the employer that establish both their identity and authority to work in the United States (e.g., passport, driver’s license, employment authorization document) and the employer must examine such documents in person, and in the presence of the employee. The employer must complete Section 2 of the I-9 form during inspection. The inspection must generally occur within 3 business days of the date the employee begins work. If the employee is being hired for fewer than 3 business days, the inspection must occur on the first day of employment.

The requirement that employers inspect original documents in person and in the presence of the new employee has posed significant challenges for employers during the COVID-19 Pandemic. Employers may have instituted remote work policies or other social distancing measures that make physical inspection of original employment authorization documents and in-person meetings with new employees impracticable for the foreseeable future.  This difficulty has been exacerbated by the recently issued Executive Orders from various states which require non-essential businesses to work solely from home.

In response to these challenges, the U.S. Department of Homeland Security (DHS) announced last Friday that it will defer the physical presence requirements for employment authorization verification for employers and workplaces that are operating remotely. Specifically, employers that are working remotely due to the COVID-19 Pandemic will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence until after normal business operations resume. Instead, employers may inspect the documents remotely (e.g., over video link, fax, or email) and obtain, inspect, and retain copies of the documents within three business days for the purpose of completing section 2 of the I-9 form.

Once normal business operations resume, all employees who were onboarded using remote employment authorization verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation. Once the employer physically inspects the documents, the employer should write “documents physically examined” with the date of physical inspection in the “additional information” field in Section 2 of the I-9 form. Employers should also enter “COVID-19” as the reason for the physical inspection delay once physical inspection occurs.

These new procedures may be implemented by eligible employers until May 19, 2020 or within 3 business days after the termination of the National Emergency, whichever comes sooner. The DHS notice also states that employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy to all new hires.

Critically, these remote procedures may only be utilized by employers and workplaces that are operating entirely remotely. If there are employees physically present at a work location, DHS is not making any exceptions for in-person verification of identity and employment eligibility documents. However, DHS did state that if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this limitation on a case-by-case basis.

Even if employers are not eligible for the new remote verification exception, all employers are still permitted to designate or contract with someone such as a personnel officer, foreman, agent, or notary public to conduct in-person inspection and verification of employment authorization documents. If an employer hires such an agent, the agent must also complete Section 2 of the I-9 form; the employer cannot fill out the form based on the agent’s representations.  In addition, employers will still be liable for any violations in connection with the I-9 form or the verification process. Employers considering designating an outside party to conduct employment authorization should also ensure compliance with relevant state laws.

Lastly, effective March 19, 2020, any employers who were served Notices of Inspection by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

Employers who are interested in conducting remote verification of employment authorization documents should review the DHS Notice carefully and develop appropriate policies, procedures, and documentation for remote verification. If you have any questions or require assistance developing verification procedures or related policies, please contact Amanda M. Baker at abaker@fglawllc.com, or any attorney at the Firm.

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