Employers across the country are facing challenges never before dreamed of as a result of the COVID-19 pandemic. For those employers that are continuing to hire, the obligation to complete and retain a Form I-9 as well as verify the identity and the work authorization of all new employees has not changed. However, on Friday, March 20, 2020, the Department of Homeland Security (DHS) announced the temporary relaxation of in-person document review for employers that are operating completely remotely due to physical proximity precautions taken in response to COVID-19. A copy of the announcement is available here. On July 20, 2020, USCIS extended the temporary relaxation policy until August 19, 2020. A complete list of USCIS COVID-19 related I-9 policy announcements is available here.

As always, all new hires must complete, sign, and date Section 1 of the I-9 by no later than their first day of employment. The new employee must then present an acceptable form of documentation verifying their identity and authorization to work in the United States that is current and valid, and the employer’s representative must complete, sign, and date Section 2 of the Form I-9 by no later than the third day of employment, per normal. Most employers must still review the original documentation presented by the new hire in person and in original (not a photocopy) and complete and sign Section 2 of the Form I-9 as always. However, for those employers that are operating completely remotely and have no employees physically present at the work location due to COVID-19, the employer may for a limited time inspect copies of documents that are provided remotely (e.g., over video link, fax, or email). To utilize this temporarily relaxed provision, the employer must also:

  1. Have written documentation describing the company’s remote onboarding and telework policy due to COVID-19 physical proximity restrictions and provide a copy of the written policy to the new hire.
  2. Retain copies of the documents presented electronically, even if the employer does not usually retain copies of employees’ I-9 documents.
  3. Make a note in the “Additional Comments” box of Section 2 that states: “Copies of documents inspected via [description of means] on [insert date] due to COVID-19.”
  4. Schedule a reminder to follow up with the employee and have them present their original documentation in person by no later than:
    • Within three business days of when the company’s normal operations resume,
    • Within 60 days of the date of the notice (now extended until August 19, 2020), or
    • Within three business days of the termination of the National Emergency, whichever is earlier.
  5. After the original documents are reviewed in person, make a note in the “Additional Comments” box of Section 2 that states: “Documents physically examined on [insert date].”

Again, this relaxation of the in-person document review requirement is only temporary and only applies to employers and workplaces that are operating completely remotely. All other employers should continue to complete I-9s in the normal fashion and in a timely manner and may be penalized in the event of an I-9 audit if they use this temporary provision in error. The temporary relaxation policy is currently scheduled to expire on August 19, 2020 (though it may be extended a fourth time).

Finally, in March 2020, DHS also announced an automatic extension for any employer that received a Notice of (I-9) Inspection (NOI) during the month of March 2020 and had not already responded. The grace period was extended once but expired July 19, 2020. All employer responses to I-9 NOIs are now due as normal.

Although DHS temporarily extended the deadline for any pending I-9 audits started during March, there is no evidence the agency intends to cease or even slow down its I-9 audit activities, despite the terrible financial and operational difficulties many businesses currently face. DHS/Immigration and Customs Enforcement (ICE) have continued to conduct regular investigation and enforcement activities, including large-scale I-9 audits, around the country. In the past 24 months, DHS has conducted a record number of I-9 audits and imposed record fines on employers with I-9 violations. Five months into the COVID-19 pandemic, I-9 forms are probably the last thing on the minds of most HR professionals and executives. However, the country will get through this difficult time, and the language of the DHS announcements makes it clear that the agency is not in a forgiving mood. Don’t let your company’s standard operating procedures and good compliance habits fall into disarray. Make sure all new I-9s are completed fully, correctly, and in a timely manner as always. And if your company has the time and opportunity, consider taking advantage of this unusual situation to do a little housekeeping. Conduct a self-audit of your I-9 records, and with the assistance of counsel, work to get them in the best shape possible for when things get back to normal and the government inevitably goes back to knocking on doors.

Please visit Schwabe’s resource page for more information, to view educational videos, or read additional articles about legal issues relating to COVID-19.

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