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Some Flexibility on I-9 Employment Verification During National Emergency Some Flexibility on I-9 Employment Verification During National Emergency

Some Flexibility on I-9 Employment Verification During National Emergency

Effective March 20, 2020, the U.S. Department of Homeland Security (DHS) has announced some limited flexibility in employer evaluation of original identity and employment authorization document(s) as required by federal I-9 Employment Verification obligations. Employers may implement the following guidance for 60 days from March 20, 2020 or for three business days after the termination of the COVID-19 national emergency, whichever comes first.

For employers who are exercising “physical proximity precautions due to COVID-19,” timely completion of the Form I-9 is still required. However, for purposes of completing Section 2 of the Form I-9, employers may collect, inspect remotely (by video or other electronic means) and retain copies of the employee’s documents. Employers that utilize this option are also required to produce written documentation of their remote onboarding and teleworking policies, if requested.

Once the employer’s normal business operations resume:
  • Employees must present original documents for in-person verification within three business days;
  • Employer must enter “COVID-19” in the Section 2 “Additional Information” field once physical inspection takes place to explain the physical inspection delay; and
  • Employer should also add “documents physically examined” along with the date originals are inspected in the Section 2 “Additional Information” field or in Section 3, as appropriate.
Please note, DHS makes clear that this option is only available 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.” As such, employers should only make use of the flexible I-9 policy when no other option exists. Employers also have the option to designate an authorized representative or agent to conduct in-person I-9 employment verification on the employer’s behalf.

To date, DHS has not announced any changes to, or suspension of, the E-Verify employment eligibility verification system, and E-verify registered employers should maintain timely compliance with that program.

If you have questions regarding I-9 compliance or any other immigration-related matter, please contact Jenifer M. Brown or Christl Glier.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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