Completing the I-9 Form in a Coronavirus Work-From-Home Environment

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

New I-9 Required by May 1 for New Hires and Reverifications

Starting Friday, May 1, 2020, employers must use a new version of Form I-9 for Employment Verification Eligibility, which is required for new hires and reverifications. The existing form expired last year and the Department of Homeland Security (DHS) had temporarily extended its validity.

The new form is virtually unchanged from the older version, except for minor technical updates to the instructions. Employers may use either the old or new version of the I-9 form before the May 1 deadline.1

All of the pre-existing I-9 rules and regulations remain intact. The employee must complete page 1, Section 1, and an authorized representative of the employer must review original documents to establish the identity and employment eligibility of the employee before completing page 2, Section 2.

For new employees, the I-9 must be completed within three days, that is, before the fourth day, after hire. For existing employees with expiring documents that need to be updated, reverification must occur before the fourth day after document expiration.

Completing I-9s When the Employer's Representative Works From Home

Employers are developing their communicable disease/illness policies in response to concerns about stemming the spread of the Novel Coronavirus Disease 2019 (COVID-19).2 Many employers are developing flexible working arrangements, including remote, "work-from-home," options. (See our COVID-19 resource page here.)

But what happens when the usual authorized representative is not on-site to review documents for timely completion of the I-9 form? DHS is inflexible on the regulation requiring review of original documents, and I-9 guidance specifically prohibits reviewing or examining documents "via webcam."

However, the I-9 rules grant broad permission for employers to designate an authorized representative to review the documents and complete page 2, including personnel officers, foremen, agents or notary public. DHS does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes.

One change to the new version of I-9 clarifies in the instructions that an employer's authorized representative can be "any person you designate to complete and sign Form I-9 on your behalf."

Under the circumstances raised by COVID-19, DHS will consider "any person" even to include a family member or household member. The employer must take steps to ensure that the person understands the obligation and takes the responsibility seriously.

  • The instructions remind the employer that, "You are liable for any violations in connection with the form or the verification process, including any violation of the employer sanctions laws committed by the person designated to act on your behalf."

Employers also must remember not to discriminate against or tolerate discrimination against any employee who may be exhibiting symptoms of a communicable disease/illness.


1  A revised Spanish version of Form I-9 with a version date of 10/21/2019 is available for use in Puerto Rico only.
2  On February 11, 2020, the World Health Organization proposed "COVID-19" as the label.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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