For employers and workplaces that are operating entirely remotely, Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) have temporarily implemented a flexible solution to assist in complying with the requirements related to Form I-9 completion.
The initial announcement on the flexibility in requirements related to Form I-9 completion was on March 20, 2020 and DHS and ICE have continued to extend its temporary policy due to the COVID-19 pandemic and the abundance of employers who are working in an entirely remote capacity.
As most employers are aware, they are required to assure that an employee fully completes Section 1 of Form I-9 and signs it by the first day of employment (by the first day of services or labor for wages or other remuneration). The employer must then review, in person, original verification documents provided by the employee by the third day of employment (unless the employee is being hired for employment of three days or less in which the I-9 procedure must be completed by the first day of employment) and complete Section 2 of Form I-9 with the pertinent information about the verification documents, including document title, issuing authority, document ID number and expiration date, if any.
As of March 20, 2020 and continuing currently through December 31, 2021, the temporary policy permits the following:
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. However, employers must inspect the Section 2 document remotely (e.g., over video link, fax or email, etc.) and obtain, inspect and retain copies of the documents, within three business days for purposes of completing Section 2. Employer should enter ‘COVID-19’ as the reason for the inspection delay in the Section 2 ‘Additional Information’ field . . .
Importantly, if employers choose to utilize this remote inspection option during the COVID-19 Pandemic, it must provide written documentation of its remote onboarding and telework policy for each employee.
Additionally, once normal operations resume for the employer who has taken advantage of the flexibility provided during the COVID-19 pandemic, all employees who were onboarded using remote inspection must present themselves within three business days for in-person inspection of the original verification and employment eligibility documents. Once the employer has completed an in-person inspection of the original verification and employment eligibility documents, the employer should write “documents physically examined” with the date of inspection in the Section 2 “Additional Information” field on Form I-9, or to Section 3, as appropriate.
Please note, this remote inspection option only applies to employers and workplaces that are operating remotely. Indeed, “[i]f there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. 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.”
Going forward, DHS will continue to monitor the ongoing COVID-19 Pandemic and National Emergency in place to determine when the extension of this provision will be terminated and the normal operations discussed above will resume.
If you have any questions about Form I-9 completion in general or whether your organization is permitted to utilize this temporary policy during the COVID-19 pandemic, please reach out to your Hall Render Immigration Team.
- Lindsay C. Ramsey at (317) 429-3637 or lramsey@wp.hallrender.com
- Charlotte M. Fillenwarth at (317) 977-1476 or cfillenwarth@wp.hallrender.com
- Michael Lee Kim at (317) 977-1418 or mkim@wp.hallrender.com
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
