Alert / Employee Benefits
DHS announces Form I-9 flexibility while employers navigate remote workforces

The Department of Homeland Security (DHS) made an important announcement at a time when many employers are developing flexible working arrangements, including work from home options, as part of their communicable preparedness plans and working through the impacts of the coronavirus (COVID-19). Until now, the DHS has been inflexible on the regulation requiring review of original documents in completing Employment Eligibility Verification (Form I-9).

The DHS has stated due to precautions implemented by employers and employees related to physical proximity associated with COVID-19, employers with employees taking such precautions will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence – giving employers an option to avoid designating an authorized representative.  

In doing so, the following directives were set forth:

  • Employers must inspect the Section 2 documents remotely (over video or email, for example, is fine) and obtain, inspect and retain copies of the documents, within three business days for purposes of completing Section 2. Note: Retaining copies of documents is voluntary unless you participate in E-Verify, except in this case.
    • After normal operations resume, employers should:
    • Require all employees who were onboarded using this remote verification to report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9 purposes.
    • Enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
    • Add “documents physically examined” with the date of inspection to the same field on the form, or to Section 3 as appropriate. 
  • Employers should have written documentation of their remote onboarding and telework policy in place for each employee. 

These provisions are allowed for a period of 60 days from or within three business days after the termination of the National Emergency, whichever comes first.

This provision only applies to employers and workplaces that are operating remotely, not if there are employees physically present at a work location. The DHS has said it will evaluate situations on a case-by-case basis if newly hired or existing employees are subject to COVID-19 quarantine or lockdown protocols.

Keep in mind, current I-9 rules granting broad permission for employers to designate an authorized representative to review the documents and complete page 2 is still permitted. Even so, the employer is still liable for any violations committed by the designated person.

Note: Beginning Friday, May 1, 2020, employers must use a new version of Form I-9 for Employment Verification Eligibility, which is required for new hires and reverifications. The existing form expired last year, and the DHS had temporarily extended its validity.

USCIS announced last week its offices will temporarily close to the public from March 18 until at least April 1 to help slow the spread of COVID-19.

 

Not legal advice: Nothing in this Alert should be construed as legal advice.

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