NOTE THIS POST WAS UPDATED ON 5/26/2021 TO REFLECT ADDITIONAL GUIDANCE FROM THE DEPARTMENT OF HOMELAND SECURITY (DHS).
WHAT’S HAPPENING
On January 21, 2020, the United States experienced its first case of the novel coronavirus, COVID-19, which has since spread to all 50 states with over 8,000 individuals having been infected as of the date of this writing. In response to the rapid spread of the virus, local, state, and government officials have called for the closure of many schools and businesses and encouraged individuals to practice “social distancing”. In order to adhere to the social distancing recommendations many businesses have closed their physical locations and are requiring all or most employees to work remotely.
This situation has led to a host of immigration compliance concerns, one of which is how employers can remain compliant when completing Form I-9 for new hires working remotely, since the I-9 process requires in-person, physical inspection of documentation in the presence of the new employee in order to verify a new hire’s identity and employment authorization.
WHAT TO DO
On March 20, 2020 the Department of Homeland Security (DHS) released guidance relaxing the in person document inspection requirements. While the applicable I-9 guidance specifically states that reviewing documents remotely, including via “webcam”, is not permitted, pursuant to this announcement employers may now inspect I-9 documents remotely (e.g. via video link, fax, email, etc.). When doing so, employers should ender “COVID-19” as the reason for the physical inspection delay in the Section 2 or 3 Additional Information field once physical inspection takes place after normal operations resume.
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Once the documents have been physically inspected, the employers should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.
The notice also states that employers may also designate an authorized representative to do the physical document inspection on their behalf. Under this option an employer could appoint an authorized representative and have that individual complete Section 2 of Form I-9 and review the employee’s documents with the employee present. Note that the most recent version of Form I-9 specifically states that an employer's authorized representative can be "any person” the employer designates to complete and sign Form I-9 on its behalf. DHS does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes.
As such, employers may also consider relying on the broad wording in the new form instructions and appointing a member of the new hire’s household as the “authorized representative” who will complete Section 2 of Form I-9. Employers must keep in mind, however, that they remain liable for any mistakes made by the authorized representative in completing Section 2 of Form I-9. Thus we recommend providing a standard set of clear, written instructions to “authorized representatives” to use to ensure their review of documents and completion of Section 2 is done in a compliant manner. In addition, we recommend employers provide their contact information to the authorized representative so that any questions or issues with the verification process can be addressed in real-time.
WHAT TO KEEP IN MIND
These relaxed requirements apply only to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.
DHS has stated that these provisions may be implemented by employer for a period of 60 days from March 20, 2020, OR within 3 business days after the termination of the National Emergency, whichever is sooner.
UPDATE: On May 14th, 2020, DHS announced a 30-day extension of the COVID-19 related flexibility for document inspection, through June 18, 2020.
UPDATE: On June 16th, 2020, DHS announced a 30-day extension of the COVID-19 related flexibility for document inspection, through July 18, 2020.
UPDATE: On July 20th, 2020, DHS announced a 30-day extension of the COVID-19 related flexibility for document inspection through August 19, 2020.
UPDATE: On August 18th, 2020, DHS announced a 30-day extension of the COVID-19 related flexibility for document inspection through September 19, 2020.
UPDATE: On September 14th, 2020, DHS announced a 60-day extension of the COVID-19 related flexibility for document inspection through November 19, 2020.
UPDATE: On November 18th, 2020, DHS announced an additional extension of the COVID-19 related flexibility for document inspection through December 31, 2020.
UPDATE: On December 23rd, 2020, DHS announced an additional extension of the COVID-19 related flexibility for document inspection through January 31, 2021.
UPDATE: on January 27th, 2021, DHS announced an additional extension of the COVID-19 related flexibility for document inspection through March 31, 2021.
UPDATE: on March 31st, 2021, DHS announced an additional extension of the COVID-19 related flexibility for document inspection through May 31, 2021.
UPDATE: on May 26th, 2021, DHS announced an additional extension of the COVID-19 related flexibility for document inspection through August 31, 2021.
UPDATE: on August 31, 2021, DHS announced an additional extension of the COVID-19 related flexibility for document inspection through December 31, 2021.
UPDATE: on December 15, 2021, DHS announced an additional extension of the COVID-19 related flexibility for document inspection through April 1, 2022.
UPDATE: on April 25, 2022, DHS announced an additional extension of the COVID-19 related flexibility for document inspection through October 31, 2022.
D&S will continue to monitor this and will provide updates as they become available.