The Department of Homeland Security (DHS) announced yesterday that it has once again extended the flexibilities in rules related to Form I-9 Employment Eligibility Verification compliance during the COVID-19 pandemic. The flexibilities and allowance for remote verification has been extended for an additional 30 days, with a new expiration date of September 19, 2020. The extension announcement can be found here.
According to the Form I-9 compliance flexibility announced by DHS earlier this year due to COVID-19, employers who are operating fully remotely 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, employers must still inspect the Section 2 documents remotely (via video link, fax, email, etc.) and obtain, inspect, and retain copies of the documents, within 3 business days for purposes of completing Section 2. Employers who use this new flexibility option must provide written documentation of their remote on-boarding and work from home policy for each employee. This burden rests solely on the employer. Once employers resume normal operations at their business with employees coming back into the office, all employees who were on-boarded or re-verified via remote verification must report to their employer within three business days for in-person verification of the identity and employment eligibility documentation for Form I-9.
Examples related to temporary COVID-19 policies
In June 2020, ICE provided recommendations for employers on how to notate Form I-9 when remotely inspecting employment authorization and identity documents, and how to perform the required physical inspection once normal operations resume:
#1 Completing Section 2 when inspecting documents remotely - Enter “Remote inspection completed on XX/XX/XXXX” in the Additional Information field in Section 2
#2 Performing physical inspection once normal operations resume - If the person who performed the remote inspection is now performing the physical inspection, enter initials in the Additional Information field along with the note “COVID-19/ Documents physically examined on XX/XX/XXX by [initials]”
#3 Performing physical inspection by a different person once normal operations resume - If a different person is performing the physical inspection, they should indicate the date they examined the documents as well as their full name and title in the Additional Information field with the note “COVID-19/ Documents physically examined on XX/XX/XXXX by HR Manager [first name] [last name]”
#4 Notating remote and physical inspection for reverification - Remote and subsequent physical inspections of reverifications should be notated in the Additional Information field in Section 2. If the same person performs both the remote and subsequent physical inspections for a reverification, complete with date and initials, such as #2 above. If a different person performs the physical inspection, that person should write the date, their full name, and title as indicated in #3 above.
DHS will continue to monitor the ongoing pandemic and will provide updated guidance as needed. Employers should continue to monitor information from DHS and ICE for updates.