March 23, 2020Client Alert

Increased Flexibility in Form I-9 Completion During the COVID-19 Outbreak

On March 20, 2020, the U.S. Department of Homeland Security (DHS) announced it will relax requirements related to Form I-9 completion for certain employees during the COVID-19 outbreak. Under normal circumstances, employers must review an employee’s original identity and employment authorization documents in the employee’s physical presence when completing the Form I-9. Due to increased workplace health and safety precautions, DHS announced that if an employer’s workforce is operating remotely due to COVID-19, the employer may review employees’ documents remotely (e.g., over video, fax, or email).

If the employer has employees physically present at a work location, this remote I-9 completion option is not available. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate remote inspection on a case-by-case basis.

When relying on this remote I-9 inspection option, the timing requirements of the I-9 completion process remain intact. Employers should be sure to obtain, inspect, and retain copies of the employee’s documents (if document retention is the company’s standard practice) within three business days of the employee’s first day of work. After normal operations resume, employers will have three business days to complete in-person inspections of the original identity and verification documents of all employees who were onboarded using the remote I-9 completion option.

The DHS announcement instructs employers to take the following additional actions:

  • Enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field on the Form I-9, or in Section 3 as appropriate.
  • Once the documents have been physically inspected (after normal operations resume), 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 in Section 3 as appropriate. 

Employers who rely on remote I-9 completion must provide written documentation of their remote onboarding and telework policy for each employee. If such a policy does not exist, employers should develop one before relying on the remote I-9 completion option.

Employers may rely on the remote I-9 completion option for a period of 60 days from the date of the DHS announcement, or up to three business days after the termination of the National Emergency, whichever comes first. 

Employers that cannot take advantage of the new remote inspection option should keep in mind that even under normal circumstances, employers may designate an authorized representative to complete Section 2 or Section 3 of the Form I-9 on their behalf. An authorized representative can be any person whom the employer designates to complete and sign the Form I-9 on their behalf. The employer remains liable for any violations in connection with the Form I-9 or the verification process.

DHS also announced that, effective March 19, 2020, employers who received an I-9 Notice of Inspection during the month of March 2020 and have not already responded are granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine whether an additional extension will be granted.

DHS will continue to monitor the ongoing National Emergency and provide updated guidance as needed. However, DHS emphasizes that employers are required to monitor the DHS and Immigration and Customs Enforcement (ICE) websites for additional updates regarding when the extensions will end and normal operations will resume.

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