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Inspection of I-9 Forms During COVID-19

March 23, 2020

By Naomi D. Johnson & J. Kent Pearson, Jr.

U.S. Department of Homeland Security Temporarily Defers In-Person Inspection of Form I-9 Identity and Employment Authorization Documents for Employers and Workplaces that are Operating Completely Remotely

The U.S. Department of Homeland Security (DHS) announced today that it will defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) for employers and workplaces that are operating completely remotely. The deferral is not available to employers with employees physically present at a work location. Under the DHS announcement, employers whose employees are taking physical proximity precautions due to COVID-19 will not be required to conduct an in-person review of the employee’s identity and employment authorization documents. However, employers are still required to inspect the Section 2 documents remotely (for example, over video link, by fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.  Employers must also provide written documentation of their remote onboarding and telework policy for each employee.

Once normal operations resume, any employee who was on-boarded using remote verification must report to their employer within three business days for an in-person verification of their identity and employment eligibility documentation. Once that review has taken place, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field of Form I-9 (or to Section 3, as appropriate). Employers should enter “COVID-19” as the reason for the physical inspection delay in Section 2 of Form I-9. Any subsequent audit of Forms I-9 will use the “in-person completed date” as a starting point for these employees only.

This deferral will be in effect until May 19, 2020, or within three business days after the termination of the national emergency, whichever comes first.

We are monitoring other changes employers are facing in this coronavirus new world. For further information, contact any member of our COVID-19 team which includes Kathryn HindmanMaryann YelnoskyFrancis BarnwellKent Pearson (Labor Law), and Kara Backus (Employee Benefits).

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