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March 24, 2020Publication

Temporary Suspension of I-9 Physical Inspection Requirement for COVID-19 Outbreak

COVID-19 Resource

The U.S. Department of Homeland Security (DHS) issued an announcement on March 19 that it was temporarily deferring the requirement to physically inspect work authorization documents when an employer completes the I-9 Employment Eligibility Verification form for new employees.

The announcement applies to any employer that is following current public health guidelines for social distancing. The deferral suspends the requirement that an employer review the employee’s identity and employment authorization documents in the employee’s physical presence as long as the employer is taking precautionary measures related to the outbreak.

Remote Inspection of Section 2 Documents

The employer must still inspect the Section 2 work authorization documents, but this can be done remotely. The announcement by DHS provides video conference, fax and email as examples of ways to inspect the Section 2 documents remotely while social distancing measures are in effect. Employers should retain copies of the documents, as well.

Additional guidelines include:

  • This provision only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, DHS says that no exceptions are being granted for in-person verification of Section 2 documents under the March 19 announcement.
     
  • The documents must be inspected remotely within three business days of the employee’s start date for purposes of completing Section 2.
     
  • Any employer who wishes to make use of the temporary suspension of the physical presence requirement as outlined here should generate a written notice of this policy, and provide this notice to each employee who is onboarded under these guidelines.
     
  • Employers must implement the policy by May 18, or no more than three days after the termination of the current National Emergency, whichever date is sooner.
     
  • DHS states it will evaluate exceptions to these guidelines on a case-by-case basis for newly hired employees or existing employees that are subject to quarantine or lockdown protocols.

Once Normal Operations Resume

After normal operations resume, all employees who were onboarded using the remote I-9 inspection procedures need to report to the employer within three (3) working days.

  • The need to bring Section 2 documents for physical inspection within three (3) working days of normal operations should be made clear to the employee in the written remote verification policy.
     
  • The employee should bring the Section 2 documents, and the employer must then physically inspect the documents in the presence of the employee, and update the I-9 form using the language provided above.
     
  • When the documents are physically inspected in the presence of the employee, the employer should add the following notes to the original I-9:

Section 2: Indicate “COVID-19” as the reason for physical inspection in the “Additional Information” field

Section 2 or Section 3, as appropriate: Write “Documents physically examined on [DATE].” This should be written in the “Additional Information” field of the appropriate section.

  • The DHS announcement promises that any subsequent I-9 audit would use the “in-person completed date” as a starting point for employees who are onboarded using the remote verification process.
     
  • The “in-person completed date” exception applies only to employees using the remote onboarding steps described above. In the event of an I-9 audit, the written documentation of the policy, the policy’s effective dates, and the physical inspection of the Section 2 documents within three (3) working days of resuming normal operations will be critical to show the employer’s compliance.

Authorized Representatives

In addition to the temporary suspension of physical inspection requirements announced on March 19, employers continue to have the option of designating an “authorized representative” to physically inspect the Section 2 documents for I-9 verification.

Authorized representatives:

  • An authorized representative can be anyone designated by the employer to act on the employer’s behalf for the purpose of physically inspecting the new employee’s documents and completing the I-9. This can even be a family member or a health care provider – it does not have to be an employee.

Detailed instructions when authorizing representatives:

  • Authorized representatives are acting on behalf of the employer, and any mistakes they make are attributed to the employer. Because of this, it is important to provide detailed instructions for requesting I-9 documents, physically inspecting them, making copies (if this is the employer’s normal practice), and completing the I-9 form correctly. Small mistakes can be costly in the event of an I-9 audit, so the better the instructions provided to the authorized representative, the better for the employer. The advantage of this approach is significant: this allows employers to onboard new employees while a telecommuting policy is in effect for COVID-19.

Health guidance for authorized representatives:

  • Because I-9 verification requires the employer or their authorized representative to be in the physical presence of the employee, there is some risk involved. During the COVID-19 outbreak, it is a good practice to include personal safety instructions for avoiding exposure to viruses with the instructions to the authorized representative. CDC guidelines for reducing risk of virus transmission can be included in the instructions.

Automatic Extension for Notices of Inspection (NOIs)

Any employer served with a Notice of Inspection by DHS during the month of March and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.

Before proceeding, please note:  If you are not a current client of Lane Powell PC, please do not include any information in this email that you or someone else considers to be confidential or secret in nature.  Prior to the establishment of a lawyer-client relationship, unsolicited emails from non-clients containing confidential or secret information cannot be protected from disclosure.

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