ICE Extends Form I-9 Compliance Flexibility for Employers Operating Remotely Due to COVID-19
The Department of Homeland Security (DHS) announced that it has extended the flexibilities in rules related to Form I-9 Employment Eligibility Verification compliance during the COVID-19 pandemic by an additional 30 days. The accommodations now expire on August 19, 2020. It is important to note that DHS also announced that no further extensions will be granted for employers to respond to Notices of Inspection issued by DHS as a part of the I-9 audit process that were served in March 2020.
On March 19, due to remote work arrangements implemented by many employers because of COVID-19, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Form I-9 Employment Eligibility Verification process. This provision, as explained in the guidance below, was implemented for 60 days and was set to expire on May 19. On May 19, and again on June 19, DHS extended this policy for an additional 30 days respectively.
Form I-9 Compliance Flexibilities
According to the Form I-9 compliance flexibilities announced by DHS, employers who are operating remotely 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.
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.
ICE has provided recommendations on how to notate Form I-9 when remotely inspecting employment authorization and identity documents, and how to perform the required physical inspection once normal operations resume.
#1 Completing Section 2 when inspecting documents remotely - Employers should enter “Remote inspection completed on XX/XX/XXXX” in the Additional Information box in Section
#2 Performing physical inspection once normal operations resume - If the person who performed the remote inspection also performs the physical inspection, they can add their initials in the Additional Information box with the note: “COVID-19/ Documents physically examined on XX/XX/XXX by [initials]”
#3 Performing physical inspection by a different person once normal operations resume - If the person who performed the remote inspection cannot perform the physical inspection, the person who performs the physical inspection should indicate the date they examined the documents as well as their full name and title in the Additional Information box: “COVID-19/ Documents physically examined on XX/XX/XXXX by HR Manager Betsy Ross”
#4 Notating remote and physical inspection for reverification - Employers should make required notations for remote and subsequent physical inspections of reverifications in the Additional Information box in Section 2. If the same person performs both the remote and subsequent physical inspections for a reverification, complete with date and initials, such as #2 above. If a different person performs the physical inspection, that person should write their full name and title, instead of their initials such as #3 above.
The 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.
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.