Form I-9 flexibility extended until July 19
The U.S. Immigration and Customs Enforcement (ICE) of the Department of Homeland Security (DHS) announced another extension of the flexibility related to Form I-9 compliance that was granted earlier this year. This means that employers with employees taking physical distancing precautions due to COVID-19 are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. The expiration date for these accommodations is now July 19.
Employers with employees taking physical distancing 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. 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, 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. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.
Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
Once normal operations resume, all employees who were onboarded 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 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.
This flexibility does not, however, change the employment eligibility criteria for employees. Nor does it apply to employees who are not operating remotely.
How we got here
Back on March 19, due to precautions implemented by employers and employees associated with COVID-19, the DHS announced that it would ease the requirement regarding the physical presence requirements associated with the Form I-9. This provision was implemented for 60 days and was set to expire on May 19. On May 19, the DHS extended this policy for an additional 30 days.
Due to the continued precautions related to COVID-19, DHS has decided to once again extend the flexibility for employers operating 100% remotely because of COVID-19.
Employers may also designate an authorized representative to act on their behalf to complete Section 2. As the flexibility allows, an authorized representative may be any person the employer designates to complete and sign Form I-9 on its behalf. The employer remains liable for any violations in connection with the form or the verification process, including 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.
The DHS continues to monitor the situation and is expected to provide updated guidance as needed.
