DHS Announces Flexibility in Form I-9 Compliance Due to Coronavirus

Coronavirus News

Written By ESR News Blog Editor Thomas Ahearn

On March 20, 2020, the Department of Homeland Security (DHS) – a cabinet department of the United States federal government with responsibilities in public security – announced that it will exercise discretion to defer the physical presence requirements for the Form I-9, Employment Eligibility Verification due to precautions implemented by employers and employees related to the Coronavirus (COVID-19).

“Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence,” as required under Section 274A of the Immigration and Nationality Act (INA), according to a news release distributed by the U.S. Immigration and Customs Enforcement (ICE).

Employers must inspect the Section 2 documents remotely – over video link, fax, or email – and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2. Employers also 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 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 business days after the termination of the National Emergency, whichever comes first.

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with employers. 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 documentation for Form I-9.

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. Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

This provision only applies to workplaces that are operating remotely due to Coronavirus. If there are employees physically present at a work location, no exceptions are being implemented for in-person verification of identity and employment eligibility documentation for Form I-9. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2 and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Effective March 19, 2020, any employers who were served Notice on Inspections (NOIs) by the 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, the DHS will determine if an additional extension will be granted.

Going forward, the 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. The DHS website is at www.dhs.gov. The ICE website is at www.ice.gov.

ICE is working closely with the DHS and other federal, state, and local agencies to facilitate a speedy, whole-of-government response in confronting the Coronavirus, keeping everyone safe, and helping detect and slow the spread of the virus. The public is encouraged to revisit this site as often as possible for any updates to this extremely fluid situation. To learn more, visit www.ice.gov/covid19.

As of March 18, 2020, the U.S. Citizenship and Immigration Services (USCIS) – a government agency that oversees lawful immigration to the United States – has suspended routine in-person services until at least April 1, 2020, to help slow the spread of the Coronavirus. On January 31, 2020, the USCIS announced the publishing of a new version of the Form I-9 that employers must use by May 1, 2020.

Employment Screening Resources® (ESR) – a leading global background check provider headquartered in Northern California – is following the impact of the COVID-19 pandemic on employers and the workforce by posting blogs on the ESR News Blog about the subject that are tagged “Coronavirus.” To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

© 2020 Employment Screening Resources® (ESR) – Making copies of or using any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.