Consulting Services • Published 4/01/2020 Updated Form I-9 Compliance Requirements Amid COVID-19 Pandemic

Last updated on 4/01/2020

If you are familiar with completing the United States Citizenship and Immigration Services (USCIS) Form I-9: Employment Eligibility Verification, then you are aware of the rule requiring employers to examine documents in-person, among all other requirements and nuances. With employers implementing remote hiring practices to stop the spread of COVID-19, many employers have been unclear on how to continue meeting their obligations for verifying employment identity and documentation while practicing social distancing.

On March 20, 2020, the Department of Homeland Security (which oversees USCIS) announced flexibility in requirements related to form I-9 compliance. While DHS rules are generally inflexible, especially when it comes to the I-9 form, during unprecedented times, DHS and USCIS are taking unprecedented measures. Here’s what you need to know:

Remote Document Examination

• 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.
• Employers must inspect the Section 2 List of Acceptable Documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three 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.

Notice Requirements

• 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.

Is This Rule Permanent or Temporary?

While many employers who regularly hire remote workers are applauding the new provisions, these rules are only temporary—so don’t get too comfortable. These provisions may be implemented by employers for a limited period ending 60 days from the date of the notice (March 20, 2020), OR within three business days after the termination of the national emergency, whichever comes first.

What Happens When Everything is Back to Normal?

• Once normal operations resume, all employees who were on-boarded 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 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.
• Please Note: Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

What Else Do I Need to Know?

This provision only applies to employers and workplaces that are operating 100% 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. 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.

Additionally, employers may 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. The employer is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Good News: Effective March 19, 2020, any employers who were served Notice of Inspections (NOIs) 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.

Going forward, DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and Immigration and Customs Enforcement (ICE) websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.

Related Article: COVID-19 Resources for Employers & Employees

Next Steps

Employers should evaluate if their current hiring situation warrants the adoption of the new I-9 rule. If so, you should implement documented processes and controls to monitor and maintain compliance. Don’t forget your notice requirements mentioned above.

If you would like more information or have any questions related to the new I-9 provisions, please contact us.