Remote Verification of New Hires Allowed for Employers to Meet I-9 Obligations During The COVID-19 National Emergency

On Friday, March 20, 2020, the US Department of Homeland Security (DHS) announced a virtual verification process that an employer may adopt as a temporary measure when onboarding employees who are located remotely during the COVID-19 national emergency. This temporary measure, which will be available to employers for a period of 60 days from the date of the notice (i.e., through May 19, 2020) or up to 3 business days of the termination of the national emergency, whichever comes first, supplements existing law that allows employers to onboard remote hires through the use of an authorized agent. Background. Under the Immigration and Nationality Act, employers are required to “physically examine” original identity and work authorization document(s) in the presence of the new hire employee who presents them.  US employers have long sought agency authorization to fulfill I-9 requirements virtually for employees who telecommute at a remote location, which would allow them to meet with remote employees and examine their documents by videoconference or similar technology.  Until now, such requests have been consistently declined.  Thus, employers with employees who telecommute from a remote location have historically had only one alternative to in-person review of documents, which is to rely on an agent to satisfy the requirement that the employee be “physically present with the document examiner.”  See Handbook for Employers (M-274) at page 11.  The regulations provide that an “employer, his or her agent, or anyone acting directly or indirectly in the interest thereof” may examine the documents and complete section 2 of Form I-9 within three business days of hire. 8 C.F.R. § 274a.2(b)(1)(ii).

COVID-19 Measure Allows for Remote Verification of I-9 Documents For Temporary Period.  The new temporary measure allows employers to initially forego the requirement to review documents in the physical presence of the employee.  Instead, employers may review I-9 documents “remotely (e.g., over video link, fax or email, etc.).”  This remote verification must be followed by an in-person review within three business days after “normal operations resume.”  While this is not defined in the announcement, it is expected that this in-person review will be required once employers terminate “work from home” directives and resume business operations at their worksites.

Conditions Required for Employers to Rely on COVID-19 Temporary Measure.  In light of the COVID-19 pandemic, concomitant “work from home” directives of employers, and shelter in place orders by several jurisdictions, DHS has announced that it will temporarily defer the “physical presence” requirements associated with an employer’s completion of Form I-9 for remote employees, provided:

• The employer has written documentation of its remote onboarding and telework policy; and
• The employer only uses the temporary procedure for employees who are remote, i.e., not physically present at a work location.

Not a Full Safe Harbor.  According to the DHS announcement, “[i]f there are employees physically present at a work location, no exceptions are being implemented at this time” to the physical presence requirements (emphasis in original).”  The announcement further states “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.”  In view of this limitation, employers may apply this temporary measure only to those new hires who are remote.

Steps Employers Must Take to Avail Themselves of the COVID-19 Temporary Measure.

1. Within three business days of the first day of employment, when completing Section 2 of Form I-9, the employer must inspect Section 2 documents “remotely (e.g., over video link, fax or email, etc.)” and retain copies of the documents.
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” (emphasis in original).
3. Following the physical inspection, the employer must further complete the Form I-9 as follows:
   – In Section 2, Additional Information box, insert “COVID-19” as the reason for the physical inspection delay.
   – In Section 2, Additional Information box or in Section 3, as appropriate, insert “documents physically examined” with the date of inspection.  This “in-person completed date” will be used by DHS, for future audit purposes, for remote onboarded employees only.

Additionally, in the event of an ICE inspection, the employer “must provide written documentation of their remote onboarding and telework policy for each employee,” after the temporary measure sunsets. As noted above, the temporary measure is in place through May 19, 2020 or up to 3 business days of the termination of the national emergency, whichever comes first.

Use of Authorized Agent Remains an Option.  The DHS announcement reinforces that employers continue to have the option to use an authorized agent to meet the physical presence requirement. Many employers have already deployed this option as they shifted to a work from home arrangement over the past week. Under this option, employers may designate an authorized representative—which can be any person so designated by the employer—to act on their behalf in completing Section 2, including meeting the new hire in person and inspecting original documents.  See Mayer Brown’s I-9 Guidance (March 11, 2020) provides details for use of this option.

Automatic Extension for Period to Respond to Notices of Inspection (NOI).  In the same announcement, DHS extended deadlines for employers to respond to a NOI, which is the initial notification, usually accompanied by a subpoena, that begins the agency’s administrative inspection process and requests I-9s for the workforce over a period of time, corporate payroll records, and documents confirming business operations. Specifically, DHS granted an automatic, 60-day extension to any employer who has received but not yet responded to a NOI, as of the March 19, 2020 effective date.  At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

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