Download Client Alert: Department of Homeland Security Provides Employers with Some I-9 Flexibility

By way of background, under the Immigration Reform and Control Act of 1986, employers are required to com­plete a Form I-9 for each new employee hired. The pur­pose of the Form I-9 is to verify the identity of each new employee and ensure that the new employee is autho­rized to work in the United States. The Form I-9 con­tains a list of acceptable documents for establishing an employee’s identity and authorization to work. Those documents include a U.S. Passport, Permanent Resi­dent Card, driver’s license, social security card, and birth certificate, among others. More importantly, federal law requires employers to physically examine each docu­ment-with the employee physically present-to determine if the document reasonably appears to be genuine and relates to the employee presenting it.

On March 20,2020, the U.S. Department of Homeland Se­curity (“DHS”) announced a new exception for employers and workplaces that are operating completely remote­ly as a result of physical proximity precautions due to COVID-19. Specifically, DHS announced that it would not require employers to review the employee’s identity and employment authorization documents in the employee’s physical presence. Employers are still required to inspect the Section 2 documents but an employer can now do so remotely (e.g., over video link, fax, or email, etc.). Em­ployers must also obtain, inspect, and retain copies of the documents, within 3 business days for purposes of com­pleting Section 2. In addition, employers should desig­nate “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. 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. An employer may implement these provisions for a period of 60 days from the date of DHS’s notice OR within 3 business days after the termination of the National Emergency, whichever comes first.

Now, for employers who decide to avail themselves of this option, it is imperative that they maintain written documentation of the remote onboarding and telework policy for each employee. Further, once normal op­erations resume, all employees who were hired 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 employer physically inspects the employment eligibil­ity documents, 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.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

Moreover, only employers and workplaces that are operating completely remotely can make use of the physical inspection of employment eligibility documents exception. According to DHS:

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.

Continue to check back with us for updates. Our firm is available to assist with your immigration needs. For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@shumaker.com.

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