On March 20, 2020, the United States Department of Homeland Security (“DHS”) announced that it would relax the requirements to the normally stringent Form I-9 Compliance document review requirements in light of the remote working challenges arising from the Coronavirus.
What are the changes?
Employers who have employees working remotely because of the Coronavirus will not be required to review the employee’s identity and employment authorization documents (“documents”) in the employee’s physical presence. However, employers must inspect such documents remotely (e.g., by video conference software, electronic mail vs. electronical mail, or facsimile) and obtain, inspect, and retain copies of the documents, within 3 business days for purposes of completing Section 2.
This applies only to employers and workplaces that are requiring their employees to work remotely. There is currently no exception if there are employees still working in person at the employer’s business premises. However, DHS will consider exceptions for newly hired or existing employees who are quarantining because of the Coronavirus, on a case-by-case basis.
It is important to note that the Form I-9 requirements are tolled if your business is closed since closure days do not constitute a “business day.” As a matter of practice, an employer should inform DHS that their business was closed by including a memorandum on any submitted Form I-9 describing the closure or the Form I-9 submission may appear to be untimely.
Lastly, employers who seek to utilize this requirement must provide written documentation of their remote onboarding and telework policy for each employee.
What must I do when my normal operations resume?
When employers resume normal business operations, all employees who provided documents electronically must report to the employer within three business days for in-person verification of the Employment Eligibility Verification documents. Employers should enter “COVID-19”as the reason for the physical inspection delay in the Section 2 additional field after physical inspection takes place. After physical inspection takes place, employers 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, if appropriate.
DHS will use the in-person completed date for any audit of these employees.
What are the important dates to follow for the temporary measures?
DHS’s temporary measures may be implemented by employers for a period of 60 days from March 20, 2020, or within three business days after the termination of the National Emergency, whichever is earlier.
Further, effective March 19, 2020, employers who were served with Notices of Inspection by DHS in March 2020 and have not already responded will be granted an automatic extension of 60 days from March 19, 2020 to respond. At the end of this period, DHS will determine whether to grant an additional extension.
What if we use a third-party service?
The existing Form I-9 regulations permit employers to authorize a third-party agent to act on their behalf to complete Section 2 or re-verify employment authorization. Employers should provide clear written instructions to such agents performing this service of the DHS requirements.
Employers should adjust their I-9 compliance policies and procedures in light of DHS’s recent announcement regarding flexibility in the I-9 context. Consider creating an internal memorandum detailing the requirements for all individuals responsible for the I-9 process. Employers should also consider creating a memorandum to attach to any Form I-9 that was created during a covid-19 business closure period describing why the completion of Forms I-9 may appear to be untimely, as explained above.