DHS Announces Extension of Temporary I-9 Policy Relating to COVID-19
On Monday, September 14th, the Department of Homeland Security (DHS) announced a 60-day extension of its temporary policy for I-9 verification, which permits employers who have work-from-home (WFH) policies covering all of their employees to verify employment authorization documents through electronic means. These temporary accommodations, which were set to expire on September 19th, have been extended to November 19th, at which point the DHS will once again provide updated guidance to employers.
Last Saturday, the DHS announced another 30-day extension of its temporary policy for I-9 verification, which permits employers who have WFH policies covering all of their employees to verify employment authorization documents through electronic means. These temporary accommodations, which were most recently set to expire on July 18th, will now last until August 19th, at which point the DHS will once again provide updated guidance to employers.
What This Means for Our Clients
Pursuant to this new announcement, employers who have WFH policies covering all of their employees may continue to verify employment authorization documents through electronic means, rather than through in-person physical inspection, provided the employer later inspects the original document when the WFH policy ends, and certain other important conditions are met. These conditions and more information about this policy are explained below.
Please contact our office if you have questions on how this policy may affect your business or about I-9 compliance in general.
The DHS announced yesterday an additional 30-day extension of its temporary policy allowing employers to verify new hire employees’ work authorization documents remotely for an additional 30 days, when completing the I-9 employment verification form. This temporary policy was announced originally on March 20, 2020, and was previously extended on May 15, 2020. It was set to expire on June 18, 2020.
The U.S. DHS announced today that it is providing flexibility on physical presence requirements for Form I-9 Employment Eligibility Verification. Due to the unprecedented measures being taken by employers and employees to limit physical proximity, employers will not be required to review identity and employment verification documents in the physical presence of the employee in order to complete Section 2. Employers and workplaces that are currently operating remotely will be permitted to inspect Form I-9 documents remotely (e.g. over video link or email) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers who wish to exercise this option must provide written documentation of their remote onboarding and telework policy for each employee.
Once normal operations resume, employers must have employees who were onboarded remotely report for in-person verification within three business days. Employers should enter “COVID-19” as the reason for the physical inspection delay and 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.
The DHS’ provision only applies to employers and workplaces operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification, assuming newly hired or existing employees are not subject to any COVID-19 quarantine or lockdown protocols. As mentioned in our previous alert, for employers that will continue to abide by the physical presence requirement, any person can act as an authorized representative of the company to complete and sign Section 2 of Form I-9.
This temporary provision will be available for employers for 60 days after the DHS’ announcement (i.e. May 19, 2020), or within 3 business days of the termination of the COVID-19 National Emergency, whichever is earlier.
Please contact our office if you have any questions about completing Form I-9 and maintaining compliance during this time.
Due to the ongoing COVID-19 outbreak, many of our clients are electing to implement partial or full remote work or flexible working arrangements. We have received numerous inquiries from clients asking how to complete the Form I-9, Employment Eligibility Verification for new hires when the company has such a policy in effect.
Overview of the Form I-9 Employment Eligibility Verification Requirement
Federal law requires that every employer who hires an individual for employment in the United States verify the individual’s work authorization on Form I-9, Employment Eligibility Verification. Employees are required to complete Section 1 of Form I-9 on or before their first day of employment. Employers must physically examine the employee’s original documents, with the employee being physically present, and complete Section 2 of Form I-9 within three business days (72 hours) of the hire. There are no exemptions to this requirement and reviewing or examining documents via webcam is not permissible. The USCIS’ M-274 I-9 Handbook for Employers is available online here.
Completing I-9 Requirement with Remote Policies
In cases where the company representative is not physically present with the employee and is unable to review employee’s documents, the employer may designate an authorized representative to act on its behalf to complete Section 2 of the Form I-9. The representative does not have to be an employee or have any special credentials.
Please note that the authorized representative who completes the Form I-9 on behalf of the company must carry out all of the Form I-9 responsibilities. It is not acceptable for the designated representative to physically examine the employee’s employment authorization and identity documents, and leave Section 2 of the I-9 form for the employer to complete. Employers are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the designated representative acting on its behalf.
E-Verify for Remote Employees
For employers that are enrolled in DHS’ E-Verify program, the non-employee authorized representative need not, and should not complete the E-Verify process. E-Verify is separate from, and takes place after the I-9 employment verification itself. E-Verify must only be completed by the designated user at the company, or a duly authorized E-Verify agent. Completion of E-Verify does not require examination of the original documents, which are required to complete the I-9.
Use of Notaries for Remote I-9 Employer Verification
Employers in some states, including California, have special rules prohibiting notaries from completing I-9 employment verification forms as an authorized representative, unless the notary is a bonded immigration consultant under California law. This requirement does not prohibit non-notaries from completing I-9.
Important Notes on Available I-9 Services and Government Response
Due to the nationwide response from employers implementing partial or full remote work policies, services that specialize in completing Form I-9 for remote workers may be overwhelmed or shutdown. Such services often rely on a network of notaries to schedule in-person appointments for remote hires, which may be restricted geographically at this time. Employers may contact our office for assistance with finding an I-9 vendor. We are updating available services regularly.
The USCIS has not issued any statement on whether it will forgive late compliance of the I-9 requirement as of today. Where an employer is unable to complete the verification process within three business days due to mandatory ‘Shelter in place’, or other government restrictions aimed at curtailing the COVID-19 pandemic, we recommend making a note to the I-9 form itself explaining these circumstance. Employers enrolled in E-Verify should also indicate this as the reason for the late filing where prompted in the E-Verify system. We have made inquiries with DHS leadership on this issue, and will provide updates.