DHS Extends Form I-9 Compliance Flexibility to November 19, 2020

Gibney Anthony & Flaherty, LLP
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The U.S. Department of Homeland Security (DHS) has extended Form I-9 compliance flexibility for certain employers for an additional 60 days, until November 19, 2020. The policy, initially announced on March 20, 2020,  relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic.

WHO DOES THE POLICY AFFECT?

Form I-9 in-person inspection rules are relaxed for any US employer who has converted to a total remote working schedule for all employees due to COVID-19. The policy  states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

HOW SHOULD QUALIFYING EMPLOYERS PROCEED?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who avail themselves of this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy.

DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

The relaxed  rules for qualifying employers with a total remote workforce will remain in place until November 19, 2020.

WHAT ELSE?

As a reminder, DHS also previously announced temporary relaxation of  Form I-9 verification requirements pertaining to individuals utilizing an  Employment Authorization Document (EAD) for employment.  Specifically,  employees may use a Form I-797, Notice of Action in lieu of the EAD, as a Form I-9, List C document establishing employment eligibility if the Notice indicates approval of an Application for Employment Authorization and is dated on or after December  1, 2019 and through and including August 20, 2020.  The relaxed Form I-9/EAD verification rule in effect until December 1, 2020.  

Gibney is  closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. 

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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