By Bruce Buchanan, Sebelist Buchanan Law



The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have announced a further extension of the flexibility in complying with the in-person requirements related to Form I-9 due to COVID-19. The temporary policy was originally put in place for the period of March 20, 2020 until May 19, 2020. It was extended until June 18 and now it has been extended another 30 days.

DHS’ temporary policy will defer the requirements for employers to review Form I-9 documents in-person with new employees where employers and workplaces are operating remotely due to COVID-19. Instead, employers may inspect the Section 2 documents remotely (e.g., over video link, fax or email). Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field.

The original announcement stated the temporary policy applied as follows:
[O]nly 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…. However, 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.



It appears on first blush this new caveat to I-9 compliance is only applicable “where employers and workplaces are operating completely remotely” – meaning all the employer’s employees are working remotely. However, this exception may apply if only a portion of the workforce is working remotely due to COVID-19. The phrase, “employers and workplaces”, seems to imply DHS will be looking at the particular workplace. If not, why did DHS use both “employers and workplaces” instead of just employers. Thus, if an employer has one workplace open while others are closed due to COVID-19 “Safe at Home” orders, one could arguably allow an employer to use remote verifications for new hires at the closed locations, where all employees are working remotely. Why? Because that specific workplace is operating remotely.

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.

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.

HI