Department of Homeland Security Provides Flexibility for Form I-9 Compliance During COVID-19 National Emergency

On March 20, the Department Homeland Security (DHS) announced procedures to provide flexibility for companies navigating Form I-9 compliance in light of the Covid-19 national emergency.

All U.S. employers must continue to complete the Form I-9, Employment Eligibility Verification form, as mandated by the Immigration Reform and Control Act of 1986 (IRCA), for all newly-hired employees. Normally the Form I-9 process requires the employer to physically meet with the new hire to conduct an in-person inspection of original identity and employment authorization documents to confirm they appear reasonably genuine and relate to the new hire.

However, the emergency DHS guidance allows employers who are implementing distancing precautions to temporarily forego the requirement to physically inspect the employee’s identity and employment authorization documents until May 19, 2020, 60 days from the date of the DHS announcement, or 3 business days after the termination of the National Emergency, whichever occurs first.

Completion of Form I-9 for Employers with Closed Offices

To avail themselves of this exception, employers with closed offices, must:

• Inspect the identification and employment authorization documents for Section 2 remotely, using video conferencing technology, fax, email, or other available method.

• Provide written documentation of their remote onboarding and telework policy for each employee.

• Employees who are onboarded using remote verification must provide documentation for in-person verification within 3 business days, once normal business operations resume.

Companies should note that this flexibility is only provided to those with no employees physically present at the work location. Form I-9 completion for newly hired employees or existing employees subject to COVID-19 quarantine or lockdown protocols will be considered for compliance on a case-by-case basis by DHS.

The Form I-9 should be completed via remote verification of documents. At the time that the physical documents can be inspected, the employer representative should enter the text as follows in the additional information box of Section 2 of the Form I-9.

In addition to the above procedures for remote verification, employers continue to have the option to designate an authorized representative to conduct verification. The U.S. Citizenship and Immigration Services (USCIS) explains in its M-274 Handbook for Employers:

You may designate or contract with someone such as a personnel officer, foreman, agent, or anyone else acting on your behalf, including a notary public, to complete Section 2. Note that anyone else who completes Form I-9 on your behalf must carry out full Form I-9 responsibilities. It is not acceptable for the designated person to physically examine the employee’s employment authorization and identity documents, and leave Section 2 for you to complete. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf.

Employers in California should continue to abide by State law which authorizes employers to only use licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals who are qualified and bonded as immigration consultants under California law (Business & Professions Code, Sections 22440, 22441).

Immigration and Customs Enforcement (ICE) Grants Additional Time to Employers for I-9 Audits and Notices of Inspection

DHS, through the March 20 announcement, has also granted a 60 day extension to employers issued a Notice of Inspection (NOI) in March of 2020. If the employer has not already responded, the employer has an additional 60 day to respond. At the end of the 60 day period, DHS will assess whether another extension is warranted.

Continuing employment verification compliance is a critical part of protecting a company from future liability in the event of an ICE Inspection. Employers must retain I-9 forms for inspection for all current employees, as well as for terminated employees for at least three years past the start date or one year past the termination date, whichever is later. Polsinelli attorneys are available to answer questions regarding Form I-9 compliance.