Flexibility in Completing the Form I-9 During COVID-19 and Remote Working: What Employers Need to Know

Remote working is a common precaution implemented by employers and employees due to the COVID-19 outbreak. As a result, the Department of Homeland Security (DHS) announced that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act.

Employers with employees working remotely (as a precaution against 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) and obtain, inspect, and retain copies of the documents, within three (3) business days for purposes of completing Section 2.

Employers also should enter “COVID-19” as the reason for the in-person 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 three (3) business days after the termination of the National Emergency -- whichever comes first.

Employers who use this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers. Any potential audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for those employees only.

Is Form I-9 completion delay used for all employees during Social Distancing orders?

The flexibility in completing the Form I-9 only applies to employers and workplaces that are operating remotely.

If employees are physically present at a work location, exceptions are not being granted at this time.

However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis.

Also, effective March 19, 2020, any employers who were served Notice of Inspections by DHS during the month of March 2020, and have not already responded, will be granted an automatic extension for 60 days from the effective date.

At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

How will employers know if these rules change again?

Going forward, DHS will continue to monitor the ongoing National Emergency and provide updated guidance as needed.

Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.

What specific steps should employers take to comply?

Regarding Section 2, employers should comply with this provision by doing the following:

  • Prepare a memo to the compliance file, noting names of employees used for the remote completion Section 2 option.
  • Determine dates to perform a physical inspection of the documents used for Section 2 completion.
    • 60 days from March 20 or
    • Within three (3) business days after the termination of the National Emergency, whichever comes first
  • Remember that the documents reviewed remotely must be retained.
  • Employers should provide both the Form I-9 and the instructions for the Form in the completion process. Employees still must select the identity and work authorization documents to present.
  • Once normal operations resume, those employees for whom the Section 2 remote process was used must be advised to report to their employer within three (3) business days for an in-person verification of their identity and work authorization documents.
  • After physically inspecting the documents, employers must annotate the Form I-9 as to the date of inspection with a note in the “Additional Information” field of Section 2 of the Form I-9 or Section 3, as appropriate.

For questions about completing the Form I-9 or other employer-based immigration matters during the COVID-19 pandemic, contact the immigration lawyers at Murphy Desmond S.C. at 608.270-5550 or infoimmigration@murphydesmond.com.

Posted March 26, 2020

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