DHS Extends Flexibility for Form I-9s to the End of 2020

On March 20, 2020, the Department of Homeland Security (DHS) provided employers some flexibility in complying with Form I-9 requirements related to Form I-9.  As the pandemic continues, DHS has extended this policy multiple times, most recently through December 31, 2020.

As a reminder, DHS has deferred 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 (or to Section 3 if a reverification). 

PLEASE NOTE:  Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee.  Therefore, employers need to create and a file memo and add it to any Form I-9 created during the suspension period explaining any change to the employer’s normal Form I-9 practices and include a commitment to complying with the employment verification process, describe the situation (and consider attaching the 3/13/20 Presidential Proclamation of National Emergency and the March 20, 2020 DHS announcement), which employees were affected, what steps the employer took, and where relevant documentation is located.  An employer can create a universal memo or attach individual memos to each Form. 

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, physical inspection and 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 an employee presents a different document at the time of physical inspection, the employer can either:  1) complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection; or 2) provide information about the new document in the Additional Information field, stating the employee presented the alternative document at physical inspection.  DHS recommends the first option.

If your company is not operating remotely, but newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS has indicated that it will evaluate these situations on a case-by-case basis.  The agency appears to prefer that employers in this situation designate an authorized representative to act on their behalf to complete Section 2 of the Form, rather than delay completion.  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.