The U.S. Department of Homeland Security Announces Flexibility in Requirements Related to Form I-9 Compliance

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The U.S. Department of Homeland Security (DHS) recently announced that it will exercise discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) process.  Such discretion is being exercised due to precautions being implemented by employers and employees related to the COVID-19 pandemic.  

According to the DHS announcement, employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Form I-9 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three (3) business days for purposes of completing Section 2 of the Form I-9. Employers have additional obligations, including preparation of a remote onboarding policy, and review of physical documents and specific notations to the Form I-9 when normal operations resume.

These provisions may be implemented by employers for a period of 60 days from the date of the DHS notice OR within three (3) business days after the termination of the National Emergency, whichever comes first. 

IMPORTANT NOTE: this provision only applies to employers and workplaces that are operating remotely.  If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of Form I-9 documentation.  

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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