McAfee & Taft

The U.S. Department of Homeland Security (DHS) is exercising discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA) until May 31, 2021. This policy only applies to employers and workplaces that are operating remotely due to the COVID-19 pandemic.

Essentially, when carrying-out their I-9 verification obligations, 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 if the employee is hired on or after April 1, 2021, and the employee is working exclusively in a remote setting.  The physical presence verification exemption will continue until the employee is no longer in remote status on a regular, consistent, or predictable basis, or within three business days after the DHS terminates the COVID-19 related flexibilities, whichever is earlier. Instead, employers must inspect the Section 2 documents remotely (e.g., over video link, fax, or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. 

The DHS’s recent pronouncement also extends the existing flexibilities for employees who were hired on or after March 2020 and who presented verification documents for remote inspection in accordance with the flexibilities first announced. As it relates to those employees, the recent guidance permits employers, in their discretion, to resume in-person verification of the employee’s identity and employment eligibility.

All employers that avail themselves of the COVID-19 flexibilities must provide written documentation of their remote onboarding and telework policy for each employee.  

Completing the Form I-9 once normal operations resume

Once normal operations resume, employers are required to physically inspect the employee’s identity and employment eligibility documents.  In completing Section 2, employers should note, in the additional information field, “COVID 19” to explain the reason for the physical inspection delay. Once the employer has physically examined the employee’s documents, the employer should note the examination date and state “documents physically examined” in the Section 2 additional information field or Section 3 if appropriate.   

Business as usual for all other workplaces

It is incumbent upon all employers to understand the flexibilities only apply to employers and workplaces that are operating remotely. So, if there are employees physically present at a work location, the I-9 flexibilities do not apply. For those employers, it is business as usual. 

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