In Response to COVID-19, DHS Provides Employers Exercising “Physical Proximity Precautions” Flexibility in Form I-9 Requirements
Under federal law, U.S. employers are required to verify the identity and employment authorization of all hired workers. This verification process requires an employee to complete Section 1 of Form I-9, Employment Eligibility Verification (Form I-9) on or before the first day of hire (work for pay). Within 3 business days of the date employment begins, the employer’s authorized representative must complete Section 2 of Form I-9 after physically reviewing the employee’s original documents. Note that the employee MUST be physically present with the document examiner and the person who examines the documents must be the same person who attests and signs Section 2. The employer must also complete Section 3 of Form I-9 when re-verification is necessary no later than the date employment authorization expires.
With the uncertainty surrounding COVID-19, commonly known as Coronavirus, many employers are developing work from home policies for their employees. For many employers this arrangement is uncharted territory. To make matters even more complicated, employers are left wondering how to timely complete Form I-9 if all authorized representatives and employees are not physically present at the office and are instead operating remotely.
There is a silver lining to all this. Today, March 20, 2020, the Department of Homeland Security (DHS) announced that it will exercise discretion regarding the physical presence requirements of Form I-9. Employers who are implementing “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 still inspect the Section 2 documents remotely over video link, fax, email, etc. and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers are instructed to enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection of the acceptable documents takes place after normal operations resume.
After the acceptable 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 if re-verification is required. DHS is allowing these provisions to be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.
It is very important to note that employers who use this option to complete Form I-9 MUST provide written documentation of their remote on-boarding and work from home policy for each employee, with the burden resting on the employer. After employers resume normal operations at their business, all employees who were on-boarded or re-verified using the remote verification option, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9. If the employer is later subject to an I-9 audit, the “in-person completed date” would be used as a starting point for these employees only.
This exception to physical examination of employees’ I-9 documentation only applies to employers and workplaces that are operating remotely. Therefore, if there are employees physically present on-site, no exceptions are currently being made. DHS will review quarantine and lockdown requirements for newly hired employees or employees requiring re-verification on a case-by-case basis.
If this exception does not apply to your company, always remember that employers may designate or contract with someone to complete Section 2. This includes, but is not limited to, a personnel officer, foreman, agent, or anyone else acting on the employer’s behalf. The employer remains liable for any violations in connection with Form I-9 and the verification process.
Also important, effective March 19, 2020, any employers who were served a Notice of Inspection by DHS as a part of the I-9 audit process during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date with additional extensions to be determined at the end of this period.
Reddy & Neumann will continue to closely monitor this situation. If you have any questions regarding I-9 compliance, please contact our I-9 team by visiting: https://rnlawgroup.com/i-9-compliance.
By: Krystal Alanis and Kristina Hernandez
Krystal Alanis is a Partner at Reddy & Neumann P.C. She acts as the Managing Attorney for the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.
Kristina is an associate attorney at Reddy & Neumann, P.C. She was admitted to the State Bar of Texas in 2011. Her practice includes representing companies and individuals with employment-based visa petitions and applications and advising clients regarding litigation options in federal court pursuant to the Administrative Procedures Act (APA). Kristina also guides employers to ensure compliance with all Form I-9 requirements by conducting internal audits of clients’ records, processes, and procedures.