The Department of Homeland Security (DHS) has announced that employers will be allowed to inspect Form I-9 documents remotely in certain situations related to the coronavirus disease 2019 (COVID-19). These procedural changes have been extended until August 31, 2021.
BACKGROUND:
The Form I-9 is used to verify a new hire's identity and work authorization. All employers must ensure that each employee properly completes the I-9 at the time of hire. The form is broken out into multiple sections:
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SectionName
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Section Overview
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Completion Deadline
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Section 1
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Employee must attest that they are authorized to work in the U.S.
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The employee's first day of work for pay
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Section 2
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Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document number(s) here.
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Within 3 business days
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Section 3
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If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) here. Employers may also be required to complete this section when rehiring a former employee, depending on how much time has passed.
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No later than the date employment authorization expires
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List of Acceptable Documents
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70
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This section does not need to be completed. It's for informational purposes only.
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Generally, employers must inspect Section 2 documents in the employee's physical presence.
TEMPORARY GUIDANCE FOR REMOTE I-9 DOCUMENT INSPECTION:
Covered Employers:
The temporary changes apply only to employers and workplaces that are operating remotely as a result of COVID-19. If there are employees physically present at a work location, no exceptions are being implemented at this time.
Update: The DHS has released subsequent guidance that states that as of April 1, 2021, the requirement that employers inspect employees' Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. If employees hired on or after April 1, 2021 work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements 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.
Temporary Changes:
The DHS says covered employers with employees taking physical proximity precautions due to COVID-19 will be temporarily exempt from the requirement to review the Section 2 documents in the employee's physical presence. However, employers must inspect the Section 2 documents remotely (such as, over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.
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 for Form I-9. Once acceptable 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 should enter "COVID-19" as the reason for the physical inspection delay.
Employers that use this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employer.
Expiration of Exemption:
The temporary changes were set to expire May 19, 2020, or within three business days after the termination of the National Emergency, whichever occurs first. However, the DHS has extended them until August 31, 2021.
COMPLIANCE RECOMMENDATIONS:
Employers that qualify for the temporary exemption should ensure they comply with the rules outlined above. Please contact your dedicated service professional with any questions.