I-9 “In-Person” Requirement Relaxed During Pandemic

During the 2020 coronavirus pandemic, DHS has relaxed the “in-person” review requirements associated with the Form I-9 process for certain employers on a remote working schedule. All other Form I-9 process rules remain in effect, meaning that remote-working employers must still complete Form I-9 within three (3) business days following an employee’s first day of work. You may review the official announcement on the DHS website.

Who does this affect?

Form I-9 in-person inspection rules are currently relaxed for any US employer who has converted to a total remote working schedule for all employees due to COVID-19. On the other hand, DHS states that “if 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.“ However, exceptions will also be made if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

How should qualifying remote-working employers proceed?

Remote employees should be asked to complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C.

Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, fax or email, etc. and complete Section 2. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. 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.

What else?

Remote-working employers who avail themselves of this option must be prepared to provide to DHS written documentation of their remote onboarding and telework policy.

DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the inspection of documents. 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.

Finally, effective March 19, 2020, any employers who were served NOIs by 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, DHS will determine if an additional extension will be granted.

How long are these relaxed rules effective?

The relaxed rules are effective immediately and will remain in place until Tuesday, May 19, 2020, or until the President ends the National Emergency Declaration, whichever comes first.

Gibney will be closely monitoring any proposed changes to I-9 policy or procedures and we will provide updates as needed.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.