The US Form I-9 employment eligibility and identify verification process is among the issues employers must address even if emergency temporary measures for office closures are undertaken. The governing regulations require in-person review of original documents and the candidate for employment in order for employers – or their agents – to complete Forms I-9 for new hires.  Similarly, in-person review of documents is required for employees whose original Form I-9 includes time-limited work authorization, and for whom re-verification of work authorization is required.

Employers are exploring practical options to fulfill I-9 obligations when offices are partially or fully closed. Among other options, the use of agents to complete Forms I-9  is acceptable under the regulations, and the US immigration agencies do not prescribe who may serve as an agent. With a clear set of instructions, reliance on an electronic process that has been closely vetted, and immediate follow-up review by the company’s experienced I-9 reviewers, employers may choose to rely on a broad pool of agents during any such emergency measures.

A. I-9 Procedure Conducted by Agents

Employers may allow new hires or re-verification subjects to identify the individuals who will act as the employer’s agent for completion of the Form I-9 during any temporary COVID-19 period, including, for example, adult family members or close acquaintances.  Because such agents will be new to the regulated process, it will be important for the employer to ensure that the agent is informed about how to follow the precise instructions of the Form I-9, in compliance with the regulatory requirements.  To that end, the employer should:

1. Provide a clear and concise instructional message to new hires and reverification subjects that if they are electing not to come to the office for onboarding (virtual or not), the I-9 procedure can be completed by an agent, which may include a family member or trusted friend.
2. The message should be accompanied by instructions for the agent that include reference to the Form I-9 instructions and an escalation “hotline” for any documentation or process questions the agent may have when completing the process.  In addition, the employer should consider incorporating a written acknowledgement by the agent to confirm full review of the Form I-9 instructions and company guidelines.
3. The employer should establish flags/notifications in its I-9 system to ensure that the company’s I-9 leaders know when a Form I-9 has been completed by an agent, which can serve as a reminder to review the completed I-9 immediately after completion (e.g., next working day).

While this is a compliant process, the employer should make it clear in the communications that this is a temporary measure, and that the employer will continue to monitor its processes as the COVID-19 situation evolves.

B. Other Alternatives

Other alternatives that would comply with the I-9 requirements, which could be used during a temporary COVID-19 reduced interaction period, include:

1. Requiring candidates to travel to another nearby (e.g., 2 hour distance) company location to verify. Upside/downside: While this process would comply with the regulations, the employer would be directing individuals who are in a “high risk” locality or themselves high risk (e.g., recent travelers from abroad) to travel to another locality, which theoretically could contribute to the outbreak.
2. Delaying the onboarding of new hires until the local office reopens, and placing candidates who require reverification in leave status/PTO (depending on allowable leave options). Upside/downside: While this approach also would comply with I-9 obligations, the expense and uncertainty of leave issues likely diminish its utility. Moreover, for employees in H-1B visa status, any leave option must align with the employer’s LCA obligations for ongoing payment of wages.

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