Form I-9 and COVID-19: Flexibility in Compliance Requirements

By Benjamin A. Nucci and Rebecca A. Winterscheidt

Department of Homeland Security (DHS) announced today changes to the Form I-9 process due to COVID-19. The guidance can be found here.

Form I-9

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:

1. Employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.);

and

2. Obtain, inspect and retain copies of the documents, within three business days for purposes of completing Section 2.

Once normal operations resume, DHS advises that employers should have all employees who were onboarded using remote verification report within three business days for in-person verification of identity and employment eligibility documentation. When completing Form I-9 after normal operations resume, DHS advises employers to enter Section 2 Additional Information “documents physically examined” with the date of inspection and “COVID-19” as the reason for the physical inspection delay.

DHS cautions that the provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, DHS advises that no exceptions are being implemented for in-person verification of identity and employment eligibility documentation for Form I-9. It is currently unclear if a single employee onsite would render the employer unable to use the provision. DHS does state, however, that if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, the Department will evaluate this on a case-by-case basis. DHS did not provide any guidance as to what constitutes "quarantine or lockdown protocols."

Worksite Compliance

For those Forms I-9 executed under the announced COVID-19 provision, DHS announced that it would use the “in-person completed date” as a starting point for these employees only during any subsequent audit.

Importantly, any employers who were served Notices of Inspection by DHS during the month of March 2020, and have not already responded, will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.