In response to the coronavirus (COVID-19) National Emergency Declaration, the U.S. Department of Homeland Security (DHS) announced it will defer the physical presence requirements associated with completing Form I-9, Employment Eligibility Verification [U.S. Immigration and Customs Enforcement (ICE), DHS Announces Flexibility in Requirements Related to Form I-9 Compliance, 3-20-20].
“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,” DHS said. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax, or email) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2 on the Form I-9.
Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 additional information field.
After the Crisis Has Passed
After the crisis has passed and normal operations resume, employers are required to complete a physical inspection of the documents within three business days. After the employer has physically inspected the documents, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field, or to Section 3, as appropriate. These provisions 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 comes first.
Employers that use this option must provide written documentation of their remote onboarding and telework policy for each employee. Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.
Restrictions on the Remote Documents Provision
DHS said the provision “only applies to employers and workplaces that are operating remotely.” If employees are 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.
Authorized Representatives May Be Used
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 its behalf. However, the employer remains liable for any violations in connection with the form or the verification process.
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Jyme Mariani, Esq., is Managing Editor of Payroll Currently and Payroll Information Resources for the APA.