Remote inspection of Form I-9 allowed during COVID-19 emergency

The federal Department of Homeland Security has relaxed the standard regarding the need to physically inspect a new employee’s employment eligibility documents when filling out Form I-9, if the employer is unable to do so during the COVID-19 (coronavirus) national emergency (U.S. Immigration and Customs Enforcement (ICE) Press Release, March 20, 2020). When completing the Form I-9 for new hires, employers are typically required to physically inspect a new hire’s employment eligibility documentation, in the employee’s presence, within three business days of the first day of work. However, if company employees are working remotely during the COVID-19 crisis, the Department of Homeland Security has relaxed the requirement to physically inspect the documentation. Instead, employers may use other means to visually inspect the documents (e.g. video link, fax, email, etc.), which still must take place within three business days of the employee’s first day of work. As the employer, you should write “COVID-19” in the “Additional Information” box contained in Section 2 on the Form I-9. For current employees whose documentation needs to be reverified while an employer is operating remotely, you should follow this same process and write “COVID-19” in the space along the side of Section 3 of the Form I-9.

If you remotely inspect employment eligibility documentation for the Form I-9 process, you should document your remote onboarding efforts and telework policy for each employee. Vigilant recommends that you keep such documentation with your I-9 forms in the event that you’re audited by ICE.

Once your organization resumes normal business operations, you must then, within three business days, physically inspect the documents that you previously inspected through other means. Once the documents have been physically inspected, you should add “documents physically examined,” with the date of inspection, underneath the previously added “COVID-19” note in either the Additional Information box contained in Section 2, or in the space next to Section 3, as applicable. You may use this process until May 19, 2020 (60 days from the date the Department of Homeland Security issued its press release), or within three business days after termination of the COVID-19 national emergency, whichever comes first.

The Department of Homeland Security has said that these provisions only apply to employers that are operating remotely; no exceptions to the normal rules will be made if employees are physically present at a work location. However, if an employee is subject to a COVID-19 quarantine or isolation order and their eligibility documentation needs to be physically inspected, the Department of Homeland Security has stated that it will evaluate those situations on a case-by-case basis. Vigilant recommends that you use your best efforts to either physically inspect or remotely inspect employment eligibility documentation for an employee who is under a COVID-19 quarantine or isolation order, and document the efforts you made.
 
In a related development, the time frame for E-Verify resolution of Tentative Nonconfirmations (TNCs) is being extended due to closures of Social Security Administration offices. If your organization uses E-Verify to electronically verify the identity and employment eligibility of your workers, you must still start the E-Verify process within three days of a new hire’s first day of work. If you’re unable to do so due to COVID-19 precautions, you should select “Other” from the drop-down list and enter “COVID-19” as the reason for the delay.
 
Tips: If you use this process, notify employees in writing (at the time you remotely inspect their documents) that they’ll be required to physically produce the documents once normal business operations resume. The Department of Homeland Security’s guidance states that employers are required to produce their telework policy for each employee whose documentation was remotely verified. Please see Vigilant’s Model Policy, Telecommuting Agreement if you need to create this policy for employees while they work remotely. For more information about an employer’s Form I-9 obligations, review our Legal Guide Form I-9: Basic Obligations of Employment Eligibility Verification. If you’re operating remotely during the COVID-19 crisis and want to discuss how best to fulfill your Form I-9 obligations, members can contact your Vigilant Law Group employment attorney.