DHS Offers Employers Ability to Review Employee I-9 Documents Remotely During Pandemic

The U.S. Department of Homeland Security (DHS) is providing employers with the option to review employee documents remotely for form I-9 purposes during the COVID-19 pandemic.  Using the I-9 form, all U.S. employers are required to establish the employment eligibility of prospective employees. The employee typically must present the required identification documents in person to the employer, or the employer’s representative. However, the DOL is making a temporary allowance for documents to be presented virtually, in certain situations, because of the ongoing pandemic.

Background on Form I-9

Form I-9 is comprised of three sections. It is the employer’s responsibility to make sure that all sections are completed correctly. Section 1 must be completed by the employee by the first day of employment. The employer should review this section for errors prior to completing section 2. The employee must then provide one or more documents that establish identity and authorization to work in the United States. Within three business days of the first date of employment, the employer must complete section 2 of the form. Section 3 is used for reverification of employee’s work authorization or re-hires, as applicable.

Ability for Remote Review of Documents

The DHS announced it would defer the requirement for in-person inspection of employee documents for purposes of completing Part 2 or Part 3 of the I-9 due to COVID-19. Employers who collect and review employees’ documents remotely, such as by video link, fax, or eMail, must retain copies of the documents inspected remotely.

This, however, is not an absolute permission to review workers’ documents remotely. The DHS is limiting this to situations in which the employee is working remotely due to COVID-19; it does not apply if the employer has any employees physically present at a work location. But the DHS does note that, “… if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.”

In-Person Document Review Required after Employees Return to Worksites

Employers will need to perform the traditional in-person verification of documents after “normal operations resume.” Such in-person verifications will be required after 60 days from the announcement of this policy, or three days from the termination of the national emergency, whichever occurs first.

When completing the in-person document review, employers need to add a note to the additional information section. It is sufficient for employers to note “COVID-19” along with “documents physically examined” with the date of the in-person document review and indicating who performed the review.

Conclusion

Despite this temporary provision allowing the remote collection and inspection of employee documents, employers must otherwise comply with the requirements of the form I-9. In addition, employers will need to be diligent about updating relevant I-9s when normal business resumes.

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