COVID-19 and the Form I-9: Preparing for the End of Remote Document Verification

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Early in the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) authorized U.S. employers with employees who are taking physical proximity precautions to remotely inspect identity and work authorization documents when completing Form I-9, Employment Eligibility Verification, rather than review original documents in person. DHS has repeatedly extended this temporary provision and recently announced yet another extension and update to this policy through May 31, 2021.

In the coming months, DHS will likely rescind this temporary policy. Even now, many employers are bringing employees back into the office on a regular, consistent, and predictable basis, and may no longer qualify to use this temporary policy. With these developments, employers may want to review Form I-9 documents and company policies regarding remote verification to ensure compliance.

Form I-9 Completion Under DHS’s Temporary Remote Document Verification Policy

Under policy guidance that has been in effect since March 20, 2020, DHS has authorized employers to remotely inspect new-hire documents for Form I-9 Section 2 completion via video link, fax, email, or other means in situations where the “employees [are] taking physical proximity precautions due to COVID-19.” This policy differs from prior policy that required in-person examination of an employee’s original documents for Form I-9 completion. In the temporary guidance, DHS directs employers, within three business days of the date an employee begins work for pay, to “obtain, inspect, and retain copies” of remotely presented employee documents. DHS also requires employers to physically inspect these documents “within three business days” of resuming “normal operations” for “employees who were onboarded using remote verification.” In physically inspecting presented documents after normal business operations have resumed, DHS instructs employers to enter “COVID-19” and “documents physically examined” with the date of physical inspection in the “Additional Information” field of Section 2 of the Form I-9. DHS advises that employers follow the same procedure for Form I-9 Section 3 remote reverifications, including the addition of “COVID-19” and “documents physically examined” notations on the form.

DHS directs U.S. employers that choose to remotely verify documents to “provide written documentation of their remote onboarding and telework policy for each employee.” The written documents that are included with the Form I-9 documentation may include notices to employees about remote work policies, statements of company remote work policies, or other documents that confirm remote work policies relevant to the COVID-19 pandemic for the employee’s worksite location.

DHS policy for remote verifications, effective March 20, 2020, through March 30, 2021

The initial DHS policy guidance above applied to employers and workplaces operating remotely. Under this policy, if any employees were physically present at a work location, no exceptions applied to in-person physical document verification for Form I-9 completion. The policy allowed case-by-case review for situations involving workers “subject to COVID-19 quarantine or lockdown protocols.”

DHS policy for remote verifications, effective April 1, 2021, through May 31, 2021

DHS recently revised the application of its policy guidance to any worker who does not physically work at a company location on a regular, consistent, or predictable basis. The current policy guidance should remain in effect until these workers begin “non-remote employment on a regular, consistent, or predictable basis,” or until DHS terminates the policy, whichever is earlier.

Planning for the End of Remote Document Verification Due to COVID-19

Employers that have not yet resumed normal business operations may want to prepare in-person physical document verification plans for Form I-9 completion, including Forms I-9 completed using the temporary DHS policy guidance. Employers that have resumed normal business operations may wish to review their Forms I-9 to ensure that follow-up physical document verification has taken place and has been appropriately recorded with required documentation of the company’s remote work policy.

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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