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In March of 2020, the Department of Homeland Security (DHS) announced temporary flexibility in its requirements related to Form I-9 compliance due to COVID-19. Employers were permitted virtual or remote review of documents (rather than in-person review within three business days of the employee’s first day of employment) for employees that were working remotely because of COVID-19. Now that the COVID-19 Emergency has ended, employers have until August 30, 2023 in which to complete the physical inspection of the documents. What does this mean?
Employers with employees who were previously taking physical proximity precautions due to COVID-19 and inspected the Section 2 documents remotely over video link, fax, email, etc., now must physically inspect the documents and note that the documents were physically examined, the date this occurred, and the full name and title of the individual who did the inspection in the “Additional Information” field on the Form I-9. If the person who performed the remote inspection also performs the physical inspection, the date of the physical inspection and the individual’s initials is sufficient. Keep in mind that prior to this, the “Additional Information” field should have included “COVID-19” as the reason why the physical inspection was delayed. Employers who took advantage of this option must provide written documentation of their remote onboarding and telework policy for each employee whose documents were inspected remotely.
The following is a helpful FAQ on the topic:
Q: What if the employee separates from employment prior to the completion of the in-person document inspection?
A: Include an explanation in the “Additional Information” box on Form I-9 and the date of the employee’s separation.
Q: What if the employee changes their immigration status between the time of remote inspection and in-person inspection?
A: The employer may either:
- Complete Section 2 on a new Form I-9 and attach it to the prior Form I-9 used for the remote inspection and note that the employee changed their immigration status in the “Additional Information” field (DHS recommended best practice); or
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Provide the document title, number, issuing authority, and expiration date (if any) of the new document and note that the employee changed their immigration status in the “Additional Information” field.
Q: What if the employee presents a different but still acceptable document at the time of physical inspection?
A. The employer may either:
- Complete Section 2 on a new Form I-9 and attach it to the Form I-9 used for remote inspection (DHS recommended best practice); or
- Provide the document title, number, issuing authority, and expiration date (if any) of the new document in the “Additional Information” field and note that the employee presented this document at physical inspection.
Q: What if the employee refuses to meet for a physical document inspection at the end of the flexibility period?
A: An employer cannot retain an employee who the employer knows is not authorized to work in the US or that does not fulfill Form I-9 document requirements. This includes presenting documentation for in-person physical examination.
Q: What if the employer will not resume work in office?
A: Employers must still conduct the in-person document inspection for each employee who was hired on or after March 20, 2020 and for whom the employer has only conducted a remote inspection of documents. Employers have until August 30, 2023 to complete the in-person physical inspection of documents.
Q: What if the document was valid during remote inspection and is now expired at the time of physical inspection?
A: As long as the employee’s document was unexpired at the time of the remote inspection, the employer should not request a new document. The employer can proceed with the physical inspection of the original document presented.
Q: What if the employees are working across the country rather than in the employer’s location?
Employers may designate an authorized representative to act on their behalf in completing the physical inspection. This can be any person the employer designates to complete and sign Form I-9 on its behalf, except for the employee in question. However, the employer is liable for any violations in connection with the form or the verification process. Keep in mind that California has more stringent requirements regarding designating authorized representatives who are not employees of the employer. Only individuals who can assist clients with completing immigration forms like the Form I-9 such as immigration attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as immigration consultants under California law may be designated.
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