All articles in this COVID-19 Response Resource issue are effective as of April 7, 2020.
Prior to the COVID-19 pandemic, employers were required to physically inspect a new employee’s original identity and employment-eligibility documents in the employee’s physical presence within three business days of the employee’s hire date. However, the Department of Homeland Security (“DHS”) announced on March 20, 2020, that it will allow employers to temporarily delay the physical inspection requirement for employees of workplaces that are operating remotely as a precaution due to COVID-19. In those circumstances, the employer may remotely obtain copies of the employee’s documents through, for example, a video link, email, or fax. The remote copies must be obtained and inspected within three business days of the employee’s hire date. All remote copies must be retained. These remote procedures are available for reverification of existing employees as well.
Once the employer’s operations resume as normal, the employer, or an authorized representative, must complete Section 2 of the Form I-9 within three business days by physically examining the new employee’s work authorization documents in the employee’s physical presence. At that time, the employer should write in the form’s “Additional Information” box “COVID-19” and “documents physically examined by [insert name] on [insert date].” The individual conducting the physical inspection must also sign Section 2 of the form. Notably, employers who avail themselves of the remote-inspection option must provide written documentation of their remote onboarding and telework policy for each employee.
Please also note that the temporary remote-inspection procedures are only available to employers and workplaces that are operating entirely remotely. Where workplaces are not entirely remote but new or existing employees are subject to COVID-19 quarantine or lockdown procedures, DHS has indicated that it will evaluate those situations on a case-by-case basis.
These modified procedures are available for employers until May 19, 2020, unless the current “National Emergency” terminates before that date, in which case employers must cease remote inspection within three business days of such termination. Employers are required to monitor the DHS and U.S. Immigration and Customs Enforcement (“ICE”) websites for additional updates concerning when the extensions will be terminated.
Lastly, for employers that received a notice of I-9 inspection (NOI) in March, but have not yet responded, the DHS has provided a 60-day extension from March 19, 2020, to respond. The deadline to respond is now May 18, 2020.
For more information, see the DHS Guidelines https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance; and the FAQs regarding temporary Form I-9 requirements https://www.uscis.gov/i-9-central/questions-and-answers-related-temporary-policies-form-i-9-and-e-verify.
If you have any questions about this process, remote work policies or teleworking policies/agreements, please contact Christina Jepson by calling (801) 536-6820 or send an email to cjepson@parsonsbehle.com.
