US employers should be aware that as of the date of this blog post, Form I-9 Employment Eligibility Verification requirements remain in effect, including the requirement that an employee’s I-9 documents must be reviewed in person. This is so, even as many employers prepare for the possibility that their employees may have to work remotely or otherwise not come to work due to the spread of the Novel Corona Virus (COVID-19).

A critical requirement of the I-9 Employment Eligibility Verification process is that completion of the employer sections (“Section 2. Employer or Authorized Representative Review and Verification”, and where applicable, “Section 3. Reverification and Rehires”), requires the employer or the employer’s authorized representative, to view the employee’s identity / work authorization document(s) in the presence of the employee.

In other words, in order to properly complete Section 2 the Form I-9, the employer or the employer’s authorized representative must physically examine either one “List A, Identity and Employment Authorization” document or a combination of one “List B, Identity” document and one “List C, Employment Authorization” document per each new hire for the purpose of determining if the presented documentation reasonably appears to be genuine and relates to the employee. This process cannot be completed using a faxed or scanned copy of the employee’s document, nor via Webcam, etc.

An employer may, however, designate an authorized representative to act on its behalf with regard to the I-9 Employment Eligibility Verification process. The recently updated Form I-9 Instructions specifically state that the employer’s authorized representative may be “any person” that the employer designates to complete and sign the Form I-9 on its behalf. The authorized representative must physically examine the employee’s documents then complete, sign / date the appropriate section of the Form I-9 on behalf of the employer.

In a special situation such as the COVID-19 pandemic that we are now facing, there may be an increased need to complete Forms I-9 remotely–and it may become more difficult for an employer to identify an individual who is willing and able to act as an authorized representative for I-9 purposes. Of course, when designating an authorized representative, employers should exercise discretion. This is because the employer remains liable for Form I-9 violations and violations in the verification process, as well as any violations of employer sanctions law that the authorized representative may commit.

At this time, the E-Verify requirements also remain in place.

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