Legal Alert

DHS Institutes Flexibility in Form I-9 Compliance for Employers Working Remotely

March 23, 2020

Department of Homeland Security (DHS) announced on March 20, 2020 that it will allow for flexibility in the completion of the Employment Eligibility Verification (Form I-9) for employers working remotely due to COVID-19 precautions.

In March 2020, the Center for Disease Control and Prevention (CDC) designated COVID-19 as a dangerous pandemic, and issued guidance on social distancing and significant restrictions on public gatherings to curb transmission. In response to the CDC proclamation and to slow the spread of the disease, a number of states issued “stay-at-home” orders and shut down businesses. As a result, there are now a growing number of businesses conducting operations remotely, including employee onboarding and hiring.

The Immigration Reform and Control Act (IRCA) requires employers to verify the identity and employment authorization by completing a Form I-9 for each person they hire. Employers are required to examine physically the identification documents of each employee when completing Section 2 of the Form I-9.

The new DHS guidance defers the physical presence requirement for employers for a period of sixty (60) days from the date of the DHS announcement, or within three (3) business days after the termination of the national emergency, whichever comes first.  Therefore, 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 until May 19, 2020 (assuming the national emergency is continuing at that time).

Employers still are required to 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 will be required to examine physically the employee documents and complete Section 2 of the Form I-9 once normal operations resume. All employees who were onboarded using remote verification are required to report to their employer within three business days for in-person verification of their identity and employment eligibility documentation. Employers must then make a notation on the Additional Information field in Section 2 of the Form I-9 and enter “documents physically examined” with the date of inspection and “COVID-19” as the reason for the physical inspection delay.

DHS requires employers using this option to provide written documentation of their remote onboarding and telework policy for each employee.

DHS emphasizes that this new guidance only applies to employers and workplaces that are operating remotely. Employers with employees physically present at a work location must continue to provide in-person verification of identity and employment eligibility. DHS acknowledges that some employees may be subject to COVID-19 quarantine or lockdown protocols and will evaluate on a case-by-case basis.

For those employees with businesses that are not completely operating remotely, the I-9 regulations allow employers to designate an authorized representative to act on their behalf to complete Section 2 remotely.  An authorized representative can be any person the employer designates to complete and sign Section 2 of the Form I-9 on their behalf.  The employer retains liability 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.

Employers planning to transition to remote work should provide training for Human Resource personnel on how to inspect employee identification documents remotely and prepare an onboarding and telework policy for remote workers.

Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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