DHS Relaxes I-9 Verification Requirements for Employers as a Result of COVID-19
/The Department of Homeland Security has issued interim guidance that provides some much-needed flexibility to employers struggling to comply with the I-9 document verification requirements for employees working remotely as a result of the COVID-19 pandemic.
Under the normal I-9 rules, employers must physically inspect an employee’s identity and work authorization documents in person when completing or re-verifying an I-9 Employment Eligibility Verification Form. However, as most employers have implemented remote work policies in response to COVID-19 either voluntarily or under government mandate, an employer’s ability to comply with the I-9 document verification requirements has conflicted with their efforts to comply with the social distancing guidance provided by government health officials.
Relaxed I-9 Verification Requirements During COVID-19 Emergency
The new interim I-9 guidance announced by DHS relaxes some, but not all, elements of an employer’s I-9 compliance obligations. The key elements of the interim I-9 guidance are:
Employers with employees working remotely because of COVID-19 no longer have to inspect an employee’s identity and work authorization documents in person when completing an I-9 form.
Employers will, however, be required to inspect an employee’s documents in person within 3 days after the employee returns to work after the employer’s normal operations resume.
Employers should note "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 (or Section 3 in reverification situations).
Employers may not use the remote documentation verification procedures for employees who remain physically present at the worksite location. 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.
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.
Designating an Agent to Complete a Form I-9
The DHS interim guidance also reminds employers that under existing I-9 rules, employers may choose to 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. However, it is important to note that the employer is liable for any violations in connection with the form or the verification process committed by the person designated to act on the employer’s behalf.
Extension of Deadline for Responding to a Notice of Inspection Issued in Connection with an I-9 Audit
DHS also announced that effective March 19, 2020, any employers who were served a Notice of Inspection (NOI) by DHS during the month of March 2020, and have not already responded, will be granted an automatic 60-day extension to respond to the NOI. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.
Questions?
If you have any additional questions about how this new I-9 guidance impacts you, please contact your Ellis Porter attorney and we will be happy to provide further clarification and assistance.