For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
Following the nationwide shift to remote work arrangements due to COVID-19, the US Department of Homeland Security (DHS) recognized the incompatibility of in-person employment-eligibility requirements with public health restrictions. For that reason, DHS has issued temporary accommodations to the Employment Eligibility Verification (Form I-9) compliance rules. These accommodations address the Immigration and Nationality Act (INA) requirement mandating that employers review original employment eligibility verification documentation in the presence of the employee within three days of hiring any worker. In light of the unique national emergency, DHS is allowing employers to inspect Form I-9, Section 2 documents remotely (e.g., over video link, fax, or email) and to inspect and retain copies (rather than originals) of those documents until normal business operations resume.
I-9 Compliance Still Required: Limited Changes Only to In-Person Document Review
The DHS announcement does not excuse employers from completing the Form I-9 nor change the timeframes for the Form I-9 process. DHS is simply allowing flexibility to the in-person, original document review requirement on a temporary basis. A new hire still must complete Section 1 of the Form I-9 on or before the first day of employment. Employers still must complete Section 2 within three business days of hire, regardless of whether they inspect documents in-person or remotely.
DHS has not eliminated the in-person verification requirement; they have granted a temporary and discretionary deferral. This deferral only applies to "employers and workplaces that are operating remotely." In-person verification and document inspection exceptions are not applicable "if there are employees physically present at a work location." As noted below, employers must be prepared to document their telework and remote onboarding policy in the event of an audit. Employers may continue to designate an authorized representative to act on their behalf to verify the original documents of remote employees if they so choose.
Purpose of the Form I-9
The Form I-9 is used for verifying the identity and employment authorization of all individuals hired to work in the United States. All US employers must ensure proper completion of Form I-9 for each individual they hire. Both employees and employers (or authorized representatives of the employer) must complete the form. The employee must attest to his authorization to work in the United States and must present his employer with acceptable documents (ordinarily in-person) evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) to determine whether the document(s) reasonably appear to be genuine and relate to the employee and then record the document information on the Form I-9. Employers must retain each Form I-9 either for three years after the date of hire or for one year after employment is terminated, whichever is longer. The form must be available for inspection by authorized US government officials but it is not filed with any government entity.
Important Procedural Points
DHS' recognition of the precarious state of current affairs employers are facing, and the need to eliminate hurdles to new employment, is welcomed. However, Human Resources (HR) departments must remain vigilant if opting to utilize the newly-announced options. Form I-9 is well-known for its complexities with much room for error and fines. Employers must carefully follow the DHS guidelines, including completion of the in-person inspection once it is possible to do so. In light of all of the workplace disruptions, this is a step that could be easily overlooked, leading to exposure to potentially substantial penalties in the event of an audit by US Immigration and Customs Enforcement (ICE).
Other procedural considerations based on the DHS guidance include:
- Employers should enter "COVID-19" as the reason for the physical inspection delay in the Section 2 "Additional Information" field.
- Employers have the burden of documentation of the eligibility to defer physical inspection in the event of an ICE compliance audit.
- All employees who completed the Form I-9 using remote verification must report to their employer within three business daysfor in-person verification of identity and employment eligibility documentation once offices reopen.
- Once the employment eligibility documents have been physically inspected, the employer should add the notation documents physically examined on [date] with the date of in-person inspection to the Section 2 "Additional Information" field, or to Section 3 (if the remote examination was for reverification purposes).
Any audit of subsequent Forms I-9 would use the "in-person completed date" as a starting point for the employees whose Form I-9s were completed under the deferral of the physical presence requirements.
Timeframe for the New Flexible I-9 Procedures
These provisions may be implemented by employers for a period of 60 days from the date of the notice (March 20, 2020) or no longer than three business days after the termination of the National Emergency, whichever comes first. That is, employers can use the remote option for up to 60 days from March 20, 2020 provided that the National Emergency is not terminated earlier.
Notice of Inspections
In addition to the Form I-9 accommodations, in the same News Release DHS announced (effective March 19, 2020) that any employers served with Notices of Inspection (NOI) relating to an I-9 enforcement during the month of March 2020 that have not already responded will be granted an automatic extension for 60 days from the NOI effective date. At the end of the 60-day extension period, DHS will determine if it will grant additional extensions.
HR teams will find themselves further challenged when trying to prepare Form I-9 under the present circumstances. As with normal Form I-9 procedures, employers need to remain consistent and uniform as they rollout the new remote verification process, and ensure it is used only for the permissible circumstances. Employers also need to be mindful that the Form I-9 can often trigger discrimination complaints and are the focus of ICE enforcement efforts. To avoid violations, it is important to develop and execute a plan to coordinate remote verifications, to maintain appropriate documentation, and to carefully implement subsequent in-person verification in a timely manner once companies and offices resume business. It is no secret that the relevant agencies and departments intend to continue targeting employers by pursuing effective worksite enforcement.
The DHS announcement has the potential for creating technical violations if not properly followed. Attention to details and diligence with protocols are a must. Steptoe's cross-disciplinary team of lawyers can help with these new employment law issues and the countless legal and policy issues that companies are now navigating due to the COVID-19 pandemic. For more information, please visit our COVID-19 Resource Center.