New I-9 Guidance During COVID-19 Pandemic

March 24, 2020

The Department of Homeland Security issued some changes to the way in which I-9 forms need to be completed during the COVID-19 pandemic.

Given the need for many employers and employees to work remotely, the Department is permitting employers to inspect Form I-9, Employment Eligibility Verification, Section 2 documents remotely (video link, fax or email, or related methods) and obtain, inspect, and retain copies of those documents until normal business operations resume.

There are a few restrictions.  The changes only apply to employers/workplaces working remotely.  If there are employees physically present at a work location, this exception does not apply.  However, if newly hired employees or existing employees are subject to a COVID quarantine or lockdown, DHR will evaluate this on a case-by-case basis.  Also, an employer may designate an authorized representative to act on their behalf to complete Section 2. The employer remains liable for any violations in connection with the form or verification process.

The three-day rule still applies such that the employer must still conduct the now-remote inspection within three business days of the employee’s start date.  Documentation must also still be retained.

Here are some further tips:

1.      The employer should use the language “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information field once the physical inspection takes place after normal operations resume;

2.      Once the documents have been physically examined, the employer should add “documents physically examined” with the date of inspection in Section 2 Additional Information or Section 3, where appropriate.   A new Section 2 should be completed if the person who performed the remote inspection is not the same person performing the later in person inspection.

3.      The employer is charged with informing employees of this process in writing.

4.      When the subsequent in-person inspection is performed, the documentation produced by the employee does not have to be the same as the documentation produced for the remote inspection as long as it satisfies the requirements of the possible documents.

The changes are temporary and are currently in place until either 60 days after the notice (May 18, 2020) OR three business days after the termination of the National Emergency, whichever is first.  It can be extended as well.

The actual notice can be found at: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance.

This information is accurate as of March 20, 2020, and is subject to change based on any new legislation.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell
207-947-4501