Companies that are surviving the economic downturn sparked by the COVID-19 pandemic and related restrictions and concerns may be finding it difficult to conduct the usual Form I-9 Employment Eligibility Verification process for new hires. Fortunately, some temporary flexibilities that can be used to address this situation were recently extended.
- U.S. Immigration and Customs Enforcement (ICE) has extended flexibility several times that were initially summarized in a March 2020 news release. Most recently, the flexibilities, including a deferral of the physical presence requirements associated with the I-9 process for employers whose employees are working remotely due to the pandemic, were extended until August 19, 2020.
- Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence for the time being. However, employers must inspect the Section 2 documents remotely (for example, over video link, fax, or email) and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.
- Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume.
- Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation.
- 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.
- Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers, ICE noted.
- However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2.
- A recurring theme, noted during a June 2020 liaison meeting between the American Immigration Lawyers Association and ICE Homeland Security Investigations, is that ICE agents are looking at every situation on a case-by-case basis and trying to be as flexible as possible, although they remain alert to potential fraud and do not anticipate future changes to the in-person inspection requirement.
- ICE noted during the same meeting that the agency does not expect an employer to bring back people who no longer work for the employer to verify documents, once the emergency situation is over. The employer can indicate “terminated before physical review” in such cases.
The extension of flexibilities applies only to employers and workplaces operating remotely. There are no exceptions for in-person verification of identity and employment eligibility documentation for employees who are physically present at a work location.
ICE also announced that no additional extensions will be granted to employers that were served notices of inspection by ICE during the month of March 2020. ICE said that DHS will continue to monitor the ongoing national emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume, ICE said.
- ICE July 2020 news release announcing extension until August 19, 2020, https://www.ice.gov/news/releases/ice-announces-another-extension-i-9-compliance-flexibility-no-more-extensions
- ICE March 2020 news release, https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance
- Related WR blogs:
- “Form I-9 Announcement: COVID-19 Temporary Policy for List B Identity Documents,” https://wolfsdorf.com/blog/2020/05/04/form-i-9-announcement-covid-19-temporary-policy-for-list-b-identity-documents/
- “DHS Announces Flexibility in Requirements Related to Form I-9 Compliance,” https://wolfsdorf.com/blog/2020/03/20/dhs-announces-flexibility-in-requirements-related-to-form-i-9-compliance/
- “I-9 Compliance During the COVID-19 Crisis,” https://wolfsdorf.com/blog/2020/03/18/i-9-compliance-during-the-covid-19-crisis/
- “Time to Start Using New I-9 Employment Verification Form,” https://wolfsdorf.com/blog/2020/02/03/time-to-start-using-new-i-9-employment-verification-form/
- New I-9 form, https://www.uscis.gov/i-9
Contact your WR attorney for advice in specific situations.