Mar 20 2020

DHS Announces Flexibility in I-9 Verification Requirements

United States

At a glance

  • Where an employee is working remotely because of the COVID-19 emergency, the employer may inspect the employee’s identity and employment authorization documents virtually using remote technology when completing Section 2 of Form I-9, or when completing Section 3 for I-9 reverifications.
  • When normal operations resume, employers will need to physically inspect documents for any employee whose original documents were not physically examined by the Section 2 or Section 3 signer.
  • The interim COVID-19 measures may not be used where some employees are physically present at the work location.

The issue

The Department of Homeland Security has issued interim guidelines for remote I-9 verification during the COVID-19 emergency.

Employers with employees working remotely due to COVID-19 will not be required to review identity and employment authorization documents in the employee's physical presence until the emergency is over, DHS has announced. This accommodation is not permitted where employees are physically reporting to a work location.

The DHS remote guidelines are not mandatory. Employers may continue to follow standard Form I-9 procedures, including the use of agents to complete verification on the employer’s behalf.

The interim procedures will be in effect for 60 days, or until 3 days after the national emergency is over, whichever comes first.

What to do now: remote examination of documents

Employers who are eligible for and elect to use the interim guidelines will be able to inspect Section 2 documents remotely, by video, fax or email, and must retain copies of the documents. The ordinary timelines for I-9 completion remain in effect. Section 1 of the I-9 must be completed by the employee’s start date and section 2 must be completed within 3 business days of the new hire’s start date.

After the emergency is over

Once normal operations resume, employers will need to physically inspect documents for all employees onboarded and I-9'd remotely. Employers should enter "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 are advised to talk to their Fragomen representative or a member of the firm’s Government Strategies and Compliance team to develop procedures for addressing I-9s completed using these relaxed procedures once normal operations resume.

Limitations on use of remote procedures

If any employees are physically present at a work location, the interim guidelines do not apply.  All standard Form I-9 procedures and timelines remain in effect. However, if new employees become subject to COVID-19 quarantine or lockdown protocols, DHS may accept the employer’s use of remote procedures, but will evaluate these scenarios on a case-by-case basis.

Using an agent to complete I-9 verification

Under standard Form I-9 verification procedures, employers may designate an authorized representative to act on their behalf to complete Section 2. The representative must physically examine the employee’s identity and employment authorization documents in the employee’s physical presence.

An authorized representative can be any person the employer designates to complete and sign the Form I-9 on their behalf, including a friend or family member of the employee. No formal agreement or designation between the representative and the employer is necessary.  However, the employer is liable for any I-9 violations made by the authorized representative.

Temporary hiatus in I-9 audits

DHS also announced that effective March 19, 2020 any employer that had received a Notice of Inspection in March 2020 that had not yet responded to the audit would be provided an automatic 60-day extension of time to respond.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.