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The U.S. Department of Homeland Security (DHS) announced that it will defer the requirements for employers to review Form I-9 documents in-person with new employees where employers and workplaces are operating completely remotely. Thus, employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email) and obtain, inspect, and retain copies of the documents, within 3 business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field once physical inspection takes place after normal operations resume.
These provisions may be implemented by those employers, as identified above, for a period of 60 days from the date of this notice, or from March 20, 2020 until May 19, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first.
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within 3 business days for in-person verification of identity and employment eligibility documentation for Form I-9. Once the documents have been physically inspected, the employer 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.
Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
This provision only applies 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.
Additionally, employers may continue to designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf.
Finally, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.
