On March 16, 2020, the American Immigration Lawyers Association (AILA) sent a letter to the Acting Secretary of the U.S. Department of Homeland Security seeking guidance regarding employer I-9 Employment Eligibility Verification requirements during the Coronavirus (COVID-19) public health emergency.

In the letter, AILA requested guidance regarding “Form I-9 verification and reverification, E-Verify and compliance requirements for U.S. businesses throughout the remainder of [the] national emergency”.  Of mounting concern among employers is the requirement that the I-9 process must be completed in person for all new hires and reverifications / rehires.

AILA notes in its letter, “the nature of the national public health emergency brought on by the COVID-19 global pandemic and recommendations from federal, state, and local government officials, is such that compliance with [I-9] requirements becomes impossible if the employer follows those recommendations to avoid spreading the virus.”

While employers cope with a variety of safety and other concerns for their employees and their businesses, guidance from DHS could provide welcome respite regarding I-9 requirements.  As a start, in its letter AILA recommended to DHS that it consider taking the following practical measures:

• Temporary suspension of, or greater leniency in, the I-9 completion timeframe requirement for all businesses during the national emergency,
• Temporary permission for employers to utilize video or other virtual verification of acceptable documentation instead of mandatory in-person documentary verification including time for completion of E-Verify requirements for enrolled employers—provided that within a reasonable period of time when the employer is able to do so, the employer physically examines the employee’s I-9 documents,
• Issuance of an official statement that a reasonable approach will be taken when considering compliance for new hires and for reverification of existing employee’s work authorization during the COVID-19 pandemic emergency,
• Temporary hold on routine, non-criminal Form I-9 inspections (which incidentally would also benefit government personnel with social distancing from COVID-19),
• Adequate extensions by Homeland Security Investigations’ (HSIs’) Special Agents and Auditors to existing deadlines related to last week’s round of Form I-9 Notices of Inspection.

For now, employers must be aware that the Form I-9 Employment Eligibility Compliance requirements remain in full effect.

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