Dhs Announces Flexibility In Requirements Related To Form I-9 Compliance

The Department of Homeland Security (DHS) announced today that it will defer the physical presence requirements for the Form I-9. 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. This only applies to employers and worksites that are operating remotely or in a work-from-home situation. 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. 

However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “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, employers must 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 a reverification). These provisions may be implemented by employers for a period of 60 days from the date of this notice (March 20, 2020) OR within 3 business days after the termination of the National Emergency, whichever comes first. 

PLEASE NOTE: Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee.

Once normal operations resume, all employees who were on-boarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for any Form I-9 completed under this guidance AND, once the documents have been physically inspected, the employer must add “documents physically examined” with the date of inspection to the Section 2 Additional Information field or to section 3 for a reverification. 

If your company is not operating remotely, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS has indicated that it will evaluate this on a case-by-case basis and reminds employers that they may designate an authorized representative to act on their behalf to complete Section 2 of the Form. An authorized representative can be any person the employer designates to complete and sign a Form I-9 on their behalf. However, the employer is liable for any violations or errors made on or in connection with the Form I-9 or the verification process.

There is no word yet on either E-Verify or if the new Form I-9 effective date will be extended, but stay tuned….