The Coronavirus has prompted the Department of Homeland Security (DHS) to issue some flexibility to account for shelter-in-place safety orders that requires employees to now work from home. One of these options was announced by DHS on March 20, 2020, for requirements related to Form I-9 compliance.
Employers and employees who are taking physical proximity precautions (i.e. working from home) due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in-person during this time. Employers are now permitted to review these Section 2 documents remotely (e.g. via webcam, fax, email, etc.) within 3 business days, but are still required to physically examine the documents once normal business operations resume.
Here is some guidance for employers taking advantage of reviewing documents remotely, they should complete the I-9 as follows:
- After reviewing the documents remotely, employers should write “COVID-19” in the Additional Information field in Section 2. Copies of the Section 2 documents inspected must be retained.
Once normal business operations resume, employers will have 3 business days to physically examine the employee’s original documents and should add “documents physically examined” with the date of inspection in the Additional Information field in Section 2.
Be advised that these provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the COVID-19 National Emergency, whichever comes first.
Additionally, employers who use this option must provide written documentation of their remote onboarding and telework policy for each employee.
This flexibility only 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 Section 2 documents.
For employers who do not wish to pursue this option, employers can still 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, however, the employer is liable for any violations in connection with the Form or the verification process.
Although DHS has granted flexibility in completing Form I-9, it is important to note that no regulations have been changed and this flexibility is granted at the discretion of DHS.
Also outlined in the DHS announcement was an automatic extension of 60 days on Notice of Inspections (NOIs) issued by DHS during the month of March (2020) in which the employer has not already responded. After 60 days, DHS, at its discretion, will determine if an additional extension is warranted.
DHS indicated that they will continue to provide additional guidance as needed via the DHS and ICE websites.