Department of Homeland Security COVID-19 Update on Form I-9

Form I-9

The Department of Homeland Security (“DHS”) has announced that it (1) is granting automatic extensions to employers who were served with Notices of Inspections in March who have not already responded and (2) deferring the physical presence requirements associated with completing the Form I-9.

As of March 19, 2020, employers who were served with Notices of Inspection by DHS during March and who had not already responded to the Notices will be granted an automatic extension for sixty days from the effective date. DHS will determine if an additional extension will be granted at the end of the extension period.

On March 20, 2020, DHS announced that it is deferring the physical presence requirements associated with Form I-9 for employers and workplaces that are operating entirely remotely. Typically, an employee is required to be in the physical presence of the employer’s representative who is completing Section 2 of the Form I-9 and looking at the actual documents presented by the employee.  This requirement has been deferred for workplaces that have gone entirely remote.  If there are employees physically present at a work location, this exception does not apply. This may mean that employees who typically are not involved in the Form I-9 process may need to be trained to review documents presented in connection with verification of an employee’s authorization to work in the United States.  Notably, if the newly hired employee is subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate such situations on a case-by-case basis.

Even under the temporary rule modification, though, employers must still inspect employees’ documents remotely (e.g., fax, scan, or video conference) and obtain, inspect, and retain copies of those documents within three business days.  Employers must also provide documentation of their remote onboarding and telework policy for each employee.

This deferral is in effect for covered employers until May 19, 2020, or until three business days after the termination of the COVID-19 National Emergency, whichever comes first.  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 for Form I-9. Once the physical inspection of the documents occurs, covered employers should: 

  1. Enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field.
  2. Add the phrase “documents physically examined” with the date of the inspection to the Section 2 “Additional Information” field on Form I-9, or to Section 3 as appropriate.

Notably, if an employer does not meet the criteria of an “entirely” remote workplace, it may designate an authorized representative to act on their behalf to complete Section 2, which could be literally anyone (e.g., the business next door, an attorney, the new employee’s landlord, etc.).  However, employers are ultimately liable for any errors made by such a person in connection with Section 2.  As such, such an approach should be taken with caution.

If you have any questions on this topic or need assistance navigating these changes, please contact our Labor & Employment Law Practice Group. We encourage you to subscribe to our Labor & Employment E-Briefs to get the latest HR news, tips, and updates.   

Visit Woods Aitken's dedicated COVID-19 resource page for useful information regarding the coronavirus pandemic.