If a Business is Working Remotely Due to COVID 19, How Do They Check I-9 Documents?

COVID-19 seems to have disrupted most, if not all of an employer’s ordinary practices and protocols.  The duty to complete the Form I-9 for new employees is no exception.

On March 20, 2020, the Department of Homeland Security (DHS) finally released guidance for employers on how to complete Form I-9 when employees are working remotely due to COVID-19. It may be impossible and unsafe to meet with new hires in person. So, DHS is offering employers much-needed flexibility when it comes to complying with the in-person inspection requirement during the National Emergency. Employers have the option to perform a remote inspection for a limited time period.

Note though, that if a company has any employees still working at the work site, the company cannot use this remote-inspection option. The only exception for employers who still have employees on-site (at this time), is when a new or existing employee is subject to a COVID-19-related quarantine or lockdown. DHS will evaluate such situations on a case-by-case basis.

COVID-19 Temporary Adjustments

Employers do not have to physically inspect I-9 verification documents where employers have closed their operations due to COVID-19. These employers:

– Can inspect the Section 2 documents remotely. DHS notes that “remote” can mean inspection via video link, fax, email or other similar means.

– Must still inspect the documents within three business days of the date of the employee’s start date. This memorandum does not modify the requirement to inspect within three days.

– Should write “COVID-19” in the Additional Information field in Section 2 as the reason for the in-person delay in inspecting the documents as soon as it is possible to inspect them in-person, after normal operations resume.

– Amend the I-9 at a later date, after having the opportunity to personally inspect the employee’s documents, to say, “documents physically examined” and add the date on which the employer did actually see the documents in person. Place this note in the Additional Information box on either Section 2 or 3, whichever is appropriate.

– Can complete Form I-9 as described above for 60 days from March 20, 2020 or until the President terminates the National Emergency, whichever is first.

– Must provide written documentation of the remote onboarding process and what the employer’s remote-work policies are for each employee. Employers should also keep a copy of these policies with their I-9 records in case DHS audits the I-9 compliance file.

Once normal business operations resume, all employees who presented identity and employment-authorization documents remotely, must report to the employer within three business days to present their documents in person and sign the form. The in-person inspection date becomes the starting date for an internal I-9 audit schedule.

The Current I-9 Requirements

The new guidance provides an exception to the current requirements only during the next 60 days, starting March 20, 2020. The current instructions specifically prohibit examining documents via webcam, or way other than in person. So someone, whether it is the HR department or a designated agent or service, must physically examine the I-9 identity and employment authorization documents in person. This information is found on the USCIS I-9 Central FAQ page.

You May Designate a Remote Representative

The employer may designate an authorized representative to complete the Form I-9 for them. For example, where employees are in quarantine with family members, it may be possible to have a family member act as the agent for the employer. Or, if there is a health care professional who is in contact with the employee, that person may also act as an agent.

In these situations, the family member or health care professional can inspect the I-9 documents, properly complete the I-9 form, and attest that the documents reasonably appear to be genuine. Note that the employer is still liable for the agent completing the form properly and verifying the documents.

The Time to Respond to DHS Letters is Extended

Effective March 19, 2020, employers who received notices in March from DHS in which DHS claims that the employer’s data does not match DHS’ records, and who have not already responded, have a 60-day extension in which to respond.  DHS will not notify employers when the National Emergency ends. Employers must monitor DHS and ICE websites for updates as to when they must resume the normal I-9 document-verification process.

Bottom Line

Remember, all of this only applies to fully remote businesses – the law requiring physical inspection of I-9 documents is still in effect, if you are not a fully-remote business.