DHS Announces Remote I-9 Completion and Suspension of Audit Responses due to COVID-19

With all of the dark news surrounding COVID-19, the Department of Homeland Security (DHS) deserves a “thank you” from employers for their logical announcement related to Form I-9 compliance issues on March 20. The main points in the announcement are outlined below:

Remote Completion of Section 2 of Form I-9

For completion of Section 2 of the Form I-9, the prior position of DHS has been that the employee must be physically present in front of the business representative completing Section 2 of the Form I-9 as to their identity and work authorization. DHS has noted in the past that the employer’s representative must review Section 2 documents not only visually – but physically as well. For example, does the card stock used to print a social security card appear to be appropriate? This expectation has always posed challenges for remote hires. Some notarial associations have advised their members not to perform this function as a company “agent” or “representative” for remote hire challenges, even though they are not being authorized to do so in a “notarial” capacity.

So what does this announcement do for Section 2 of the Form I-9 completion?

The text of the announcement provides –

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 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. Employers also should enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or section 3 as appropriate.

These provisions may be implemented by employers for a period of 60 days from the date of this notice (March 20) OR within 3 business days after the termination of the National Emergency, whichever comes first.

In addition, employers using this option must provide a written statement of their remote onboarding and telework policy for each employee. As to any audit of Forms I-9 for the future, employers are advised to use the later “in-person completed date” as the start date for these employees only.

Does this remote inspection rule apply to all new hires?

NO – The option only applies to employers and workplaces that are operating remotely due to the COVID-19 pandemic. If any employees are physically present at a “work location,” no exceptions are applied. If, however, newly hired employees OR existing employees are subject to COVID-19 quarantine or lockdown, DHS will evaluate the use of the remote inspection option on a case-by-case basis. [In other words, if an employer chooses to do this, then they should prepare a memo to the compliance file regarding this decision for the affected employee(s)].

Of course, employers can still use the old option to designate a representative for Section 2 completion. They are not able to reduce their liability for accurate completion of the I-9 when they do use these designees.

How long does the remote inspection option apply to those allowed to do so under the policy?

Up to 60 days from March 20 (May 19) OR within three business days after the termination of the National Emergency, whichever comes first.

What might the Section 2 annotation, when applicable, look like?

What additional steps should employers consider to comply with this provision?

  1. Prepare a memo to the compliance file noting names of employees used for the remote completion Section 2 option.
  2. Determine dates to perform a physical inspection of the documents used for Section 2 completion.
  • 60 days from March 20 OR
  • Within three business days after the termination of the National Emergency, whichever comes first.
  1. Remember that the documents reviewed remotely MUST be retained.
  2. Employers should provide both the Form I-9 and the instructions for the Form in the completion process. Employees still must select the identity and work authorization documents to present.
  3. Once normal operations resume, those employees for whom the Section 2 remote process was used must be advised to report to their employer within three business days for an in-person verification of their identity and work authorization documents. After physically inspecting the documents, employers must annotate the Form I-9 as to the date of inspection with a note in the “additional information field” of Section 2 of the Form I-9 or Section 3, as appropriate.

What about Form I-9 Notices of Inspection (NOI) served by DHS during March 2020 that are pending for response by the employer?

Employers who have not yet responded will be granted an automatic extension of 60 days from the effective date. That date may be the announcement date of March 20, but legal counsel should be consulted. DHS notes that future extensions may be available post the 60 day period, but that is not a guarantee and will be reviewed.

About the Author:

Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group.  She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  She serves on the AILA Board of Governors.  In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950).  She has testified several times before Congress on matters of immigration policy and border security.