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Department of Homeland Security Announces Flexibility to Form I-9 Compliance Requirements due to COVID-19 Emergency

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Pasricha & Patel

The Department of Homeland Security has announced that effective Friday, March 20, 2020, it will exercise discretion and defer the physical presence requirements related to Form I-9 Employment Eligibility Verification of the INA. This means that employers with employees that take physical proximity/social distancing precautions due to the COVID-19 emergency will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence.

However, the employer must still make sure to inspection the Form I-9 Section 2 documents remotely, such as via video link, fax, or email, etc., and also obtain, inspect, and retain copies of the documents, within three (3) business days for completing Section 2 of the Form I-9 verification. The employer should also make sure to fill in ‘COVID-19” as the reason for the physical inspection delay to Section 2 additional information section field once the physical inspection does take place after normal business operations resume. And once the employer does physically inspect the Section 2 documents, the employer should also add: “documents physically examined” with the date of the inspection to Section 2 additional information field on the Form I-9, or to section 3, whichever is appropriate. The employer will have a period of 60 days from March 20, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes later.

It is also the responsibility of the employer who makes use of this option that they must also provide written documentation of their remote onboarding and teleworking policy for each employee. And once business operations are back to normal, all employees who were onboarded using remote verification must report to their employer within three (3) business days for in-person verification of identity and employment eligibility documentation for Form I-9 employment verification. The employer will physically inspect those documents, and then the employer needs to write: “documents physically examined” within the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3, whichever is appropriate. That date will be important later on for any I-9 audits, as the DHS will regard that as the starting point for these affected employees.

DHS does also clarify that this temporary provision only applies to employers and workplaces that operate remotely. If the employees are physically present at the work location, there are NO EXCEPTIONS to the in-person verification requirement. However, if the newly hired employee or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate such a scenario on a case-by-case basis. Also, the employer is allowed to designate an authorized representative to act on their behalf to fill out Section 2 of the Form I-9. But the employer remains liable for any violations that the authorized representative may commit on behalf of the employer.

Finally, effective as of March 19, 2020, any employers who were served with Notice of Inspections (NOIs) by the DHS during the month of March 2020 and have not yet responded to the NOIs are granted an automatic extension of 60 days from the effective day of March 19, 2020. And DHS will have the discretion to grant even further extensions as well.

The announcement here by the DHS reflects the fast moving nature of the COVID-19 emergency and how it can impact all aspects of employer-employee compliance matters.

We do recommend our readers to continue to follow our site and platform for any further updates in this area, and should you have any questions about this or any immigration-related questions, please feel free to contact our office to schedule formal consultation.