On March 20, 2020, the Department of Homeland Security announced that, in light of the precautions being implemented by employers due to COVID-19, it will exercise discretion in enforcing the physical presence requirements associated with Form I-9.
DHS announced that it will not require employers with employees taking physical proximity precautions due to COVID-19 to review the employee’s original identity and employment authorization documents in the employee’s physical presence. Employers must still inspect the Section 2 documents, but may do so remotely (for example, over video link, fax, email, etc.). Employers must obtain, inspect, and retain copies of the documents within three business days of the employee’s first day of work for purposes of completing Section 2.
The DHS announcement states that employers may utilize the “relaxed” physical inspection requirements provisions as needed for a period of 60 days from the date of the announcement (March 20, 2020) OR within 3 business days after the termination of the National Emergency, whichever comes first.
Employers who inspect Section 2 documents remotely must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
Within three business days of resuming normal operations, employers must physically inspect Section 2 documents for all employees who were onboarded using remote verification. 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. Employers 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.
If DHS audits an employer’s I-9 forms, DHS will use the “in-person completed date” as a starting point for these employees only.
DHS’s temporary exception to the I-9 physical inspection requirement is only accessible to employers and workplaces that are operating remotely. DHS’s notification expressly states that “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.
The DHS notification reminds employers that they 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 remains liable for any violations in connection with the form or the verification process.
Finally, DHS stated in the notification that it is continuing to monitor the ongoing National Emergency and will provide updated guidance regarding the Form I-9 process as needed.