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DHS Extends COVID-Related Form I-9 Compliance Flexibility
BMK Group

In consideration of ongoing COVID-19 precautions in workplaces, flexibilities in rules related to Form I-9 compliance that were granted in March 2020 and updated earlier this year have been extended to Aug. 31, 2021. Specifically, for new employees who will work exclusively in a remote setting due to the pandemic, employers are temporarily excused from the in-person requirement for verifying documents that prove the employee’s identity and eligibility to work in the United States. 

Form I-9 requirements

As an employer, you must complete and retain a Form I-9, Employment Eligibility Verification for everyone you hire to work for pay. New hires must fill out Section 1 of Form I-9 on or before their first day of work to attest that they are eligible to work in the United States. You must review the form and supporting original documents – which employees are instructed to provide from a list of documents to prove their identity and work eligibility – and complete Section 2 of the form. This must be done within three business days of the employee’s first workday (or by the first workday if the employment is for three or fewer days). Form I-9 has a third section that must be completed upon the expiration of an employee’s employment authorization or documentation of employment authorization. Under normal circumstances, you or an authorized representative must meet with the employee and review documents in person to complete Section 2 or 3.

The current version of Form I-9, which is dated Oct. 21, 2019, must be used. It is available on the U.S. Citizen and Immigration Services website and can be filled out and stored in print or electronic form. 

Why you must complete a Form I-9

Employers are required to verify employees’ identity and eligibility to work in the United States, as per the Immigration Reform and Control Act of 1986. You must retain Forms I-9 for three years after the date of hire or for one year after employment is terminated, whichever is later, and be prepared to present them for inspection if requested by U.S. government officials. Failure to timely complete and retain copies of Forms I-9 can result in fines for each violation or, in the case of offenders who have a pattern of knowingly hiring unauthorized aliens, criminal penalties including fines and imprisonment. It is good practice for employers to also keep copies of identification and employment verification documents with I-9 forms for possible good faith defense arguments.  

How the pandemic impacted the Form I-9 process

The mandate to complete Form I-9 in a timely fashion has not been impacted by COVID-19. However, the Department of Homeland Security (DHS) first announced in March 2020 that it would allow some flexibility regarding the in-person requirements for employers with remote operations to verify documentation and complete their portion of the form. Employers who qualify for this temporary exception must review the employee’s identity and employment authorization documents via a secure file transfer link, fax, secure/encrypted email, or, if necessary, by taking a screen shot of the documents shown to them over video using a company issued device. You should indicate that the inspection was completed remotely because of COVID-19, with date and initials, in the “Additional Information” field on the form. Later, within three days of the resumption of normal operations, you must hold an in-person meeting and review the documents with the employee. You should then add the words “Documents physically examined” with the date and initials to the form.

Guidance for employees hired on or after June 1, 2021

The extension announcement included guidance for employees hired on or after Jun. 1, 2021 and who work exclusively in a remote setting due to COVID-19-related precautions. The guidance, which is the same as guidance that was issued for employees hired on or after April 1, 2021, states that employees are temporarily exempt from the physical inspection requirements associated with the Form I-9 process “until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” 

Previous guidance

In its March 20, 2020 announcement, DHS stated, “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.” However, the agency later provided somewhat conflicting guidance, stating, “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, 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.”

The ambiguity left certain employers unsure of their obligations, such as employers with a mix of essential employees working on site and others working remotely as their job functions allowed. DHS later issued new guidance, stating that, as of April 1, 2021, the in-person requirement “applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.”  

Documenting the remote onboarding process 

According to DHS’s original guidance, employers must provide written documentation of their remote onboarding and telework policy for each employee. Employers should create and retain a file memo to any Form I-9 (whether print or electronic) explaining any deviation from normal Form I-9 practices and attach government-issued stay-at-home orders and other advisories to provide context for the deviation. In this memo, you should detail which employees are affected, what steps were taken and where relevant documentation could be found, in addition to expressing and confirming your commitment to compliance with the Immigration Reform and Control Act’s employment verification requirements. You may create a universal memo that covers all Forms I-9 from a specified period or attach an individual memo to each one.

Using an authorized representative

Another option, which some employers may find preferable, is to authorize a representative to review the employee’s documents in person and fill out Section 2 or 3 of the form. This option, which is permanently available to employers, is usually utilized for onboarding remote employees, such as those who work in a different city from where the company has offices. An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. What makes this option particularly useful during the pandemic is that it is acceptable to authorize a member of the employee’s household as your representative. But while this is lawful, you must bear in mind that you are liable for any violations in connection with the form or the verification process and you should therefore exercise extreme caution. Document that the “agent” is acting on your behalf by sending this person clear written instructions. Further, you should monitor the process via video conference and closely scrutinize the completed form and electronic document copies.

Security of documents and sensitive information

It is important to remember you are responsible for the security of your employees’ sensitive personal information. If you are retrieving copies of documents and sensitive information electronically, work with your information security team to ensure safe transmission and/or capture of personal information. As Forms I-9 contain personally identifiable information (PII), they are prime candidates for a data breach if they are not handled properly. 

If you require assistance with your Form I-9 practices, our firm can assist you. Barst Mukamal & Kleiner is one of the longest-running immigration law firms in the United States and provides comprehensive immigration law services. Visit https://barstlaw.com/contact-us/.

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