Onboarding During a Crisis: DHS Temporary Change to I-9 Requirements

If your organization is still operating during the pandemic and your workers are working remotely, you may still be hiring workers and need to onboard them. The U.S. federal government must adapt, and one silver lining in the corona crisis is that the Department of Homeland Security (DHS) announced flexibility in requirements related to Form I-9 compliance. Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the DHS announced on 3/20/20 that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).

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.

Steps You Must Take:

  1. Employers must inspect the Section 2 documents remotely (e.g., 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.
  2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume.
  3. Once the documents have been physically inspected, the employer should add “documents physically examined”, along with the date of inspection, to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.1

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with employers.

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, Employment Eligibility Verification.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

This provision only applies to employers and workplaces that are operating remotely. 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, Employment Eligibility Verification. 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. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

It’s unfortunate that this law is not being made as a permanent change. It sure would simplify the onboarding process in line with the 21st century. Who knows; eventually, maybe it will…

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Sources:

1 https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

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