Flexibility in I-9 Verifications during COVID-19 Shutdown

The Department of Homeland Security announced that it will defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9).  As employers and employees observe social distancing precautions, employers can now inspect Section 2 documents remotely via video link, fax or email, etc.  However, please note the following important steps:

 

  • Employers must view Section 2 documents, even if remotely, within 3 business days of the start of employment;
  • Documents submitted via email/fax/etc. must be retained;
  • Once physical examination is conducted:
    • Employers should enter “COVID-19” in the “Additional Information” box on Section 2;
    • Employers should add “Documents physical examined [INSERT DATE]” in the “Additional Information” field on Section 2.
    • The explanation for the delay should also be added on a memo attached to the employee’s I-9 file.
    • Once normal operations resume, employees must present the original documents used during remote verification within 3 business days.  Employers should add the date in which in-person verification took place in the “Additional Information” field on Section 2.

 

Employers may implement the above provisions for a period of 60 days from March 20, 2020 OR within 3 business days after the termination of the National Emergency, whichever comes first.

 

The above rules only apply to employers and workplaces that are operating remotely.  If employees are physically present at a work location, normal I-9 verification rules apply.

If you have any questions regarding I-9 compliance, please contact your Graham Adair representative.

I-9 Compliance During the COVID-19 Pandemic

To comply with the social distancing guidelines to limit the spread of the COVID-19 virus, more employees are working from home. Despite this change, it’s important for HR professionals to help make sure their company stays compliant with employment verification and related requirements – which have not been relaxed (at this time) by the federal government.

 

In fact, there is language on USCIS’s  Special Situations webpage that states, “All requirements for Form I-9, Employment Eligibility Verification, completion and E- Verify remain in place.”

 

Here are 9 of the most important issues and questions U.S. HR departments may have regarding I-9 employees:

 

  1. Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

No. As of this date, the Form I-9 (and E-Verify, if applicable) must still be completed following the existing requirements.

 

  1. What are viable options for completing Form I-9 in remote work scenarios?

Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire with the Form I-9 and the instructions to complete Section 1 on or before the date of hire. Despite the challenges of remote employment, the employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment).

 

One strategy for compliance is to authorize an agent, also referred to as an “authorized representative,” to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. To verify the agent is acting appropriately, many employers will have someone on the phone or present via webinar to observe the Form I-9 process. Keep in mind the agent is acting on the employer’s behalf. Therefore, any mistakes made by the agent will be attributed to the employer.

 

The process of verifying original documents must occur in-person. Make sure whoever is tasked with the verifying is following current CDC guidance relating to reduction of the risk of virus transmission.

 

  1. To comply with social distancing recommendations, can a family member already in the household act as a 3rd party?

Yes, but it’s not an ideal situation. If, due to the employee having to self-isolate and/or quarantine, a family member or health care provider acts as the agent, then the employer needs to make sure Section 2 of the Form I-9 has been completed correctly. The employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

 

It may be wiser to instead wait to complete Section 2 of the form until the employee is in the office and able to meet with the employer in-person to complete the form. Opting to have a late-completed form for the sake of having more control of verifying that the documents presented appear to be genuine and relate to the employee may pay off in the end.

 

  1. If I cannot find anyone to verify a remotely hired employee, should I verify the documents through Skype or Zoom or some other video communication?

No. As for now, the law still requires physical inspection of documents for I-9 purposes.

 

  1. If we normally use an electronic I-9 system, how should remote I-9s be handled?

It is perfectly fine to maintain the I-9 electronically, providing doing so complies with the applicable regulations for electronic I-9 retention. But remember: the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents.

 

  1. What should my company include in the recommended file memo for forms created in this period?

Per 8 CFR §274a.2(b)(2), the Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year (three years from the date of hire or one year from the date of termination, whichever is later).

 

In the event some Form I-9s were completed late or did not have copies of documents attached due to the challenges created by the COVID-19 pandemic, then be sure to write explanatory notes in Section 2. In the event of an inspection or other investigation, those notes and other evidences should confirm your company did all it could to stay compliant despite the trying circumstances.

 

  1. Does suspension of employer operations impact the employment verification requirements?

Yes. If a business is closed, then the Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes. Again, remember to note this on the Form I-9.

 

  1. How does my company receive copies of the documents if an agent was used?

If sections 2 and 3 of the Form I-9 was completed remotely by an agent, your best practice would be for the person acting as the employer’s agent to make copies and deliver them to you. Or, you can make a copy of the documents as soon as the employee can bring them in. However, then you have the challenge of confirming that the documents presented are the same as those used for Form I-9 completion.

 

  1. How can my company ensure we provide clear communication throughout this outbreak?

Because employers and employees are dealing with many difficult issues during this extraordinary time, clear, concise and frequent communication – along with smart policies and proper procedures – are critical. Here are some tips to keep in mind:

  • Create a file memo. This provides a record for future possible enforcement action.
  • Clearly communicate to employees the steps you’re taking in response to the pandemic and any related changes in procedures. Make sure all your actions are based on valid business and compliance-related factors. This will help to mitigate risk of any discrimination-related claims or enforcement.
  • Do not prescribe which document(s) should be presented by the employee. This will help you avoid violation of the anti-discrimination provisions found in 8 CFR §274b. The employee must choose which documents to present for verification or re-verification purposes. Always provide a copy of the List of Acceptable Documents attached to the Form I-9.
  • Great care should also be taken in how the Form I-9 (and document copies, if applicable) completed by an agent are stored and transmitted to your company so that personally identifiable information (PII) is protected.
  • Be sure to use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020.
  • Lastly, it’s a good idea to create an action plan of priorities that balances the competing factors and document the same so it’s 1) clear any actions were taken out of both caution and for the sake of I-9 compliance during this global pandemic and 2) the actions you take were deemed in your employees’ best interest during these challenging times.

Please contact your Graham Adair representative with any questions.