In response to the COVID-19 crisis, employers across the nation have swiftly implemented work-from-home policies in order to limit physical proximity among employees. The U.S. Department of Homeland Security (DHS) has recognized these workplace changes and announced that it will defer the physical presence requirements associated with completing the Employment Eligibility Verification (Form I-9).

By way of background, the Form I-9 verification process typically requires an employer’s authorized representative to physically examine the newly hired employee’s identification documents with the employee physically present. The new policy suspends this requirement and allows employers to inspect the identification 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 the I-9 form. 

The DHS explained the process as follows:

  • First, employers should remotely inspect the identification documents and completely fill out Section 2 of the Form I-9. Employers have three business days of the employee’s start date to submit the documents and fill out the Form I-9.

  • When normal business operations resume (i.e., employees stop working remotely), employees who were onboarded remotely must report for in-person verification within three business days.

  • An employer representative must physically inspect the documents. Once documents have been physically inspected in the employee’s presence, the employer should update the Section 2 “Additional Information” field (or Section 3, as appropriate) to add “documents physically examined” with the date of the physical inspection.

  • Employers should also enter “COVID-19” as the reason for the physical inspection delay in the Section 2 "Additional Information" field once physical inspection takes place after normal operations resume.

  • Ideally, the same certifier who inspected documents remotely should conduct the physical inspection when normal business operations resume. However, if that person is not available for the physical re-examination, a new Section 2 must be completed and signed by the employer representative, noting the unique circumstances in the "Additional Information" field in Section 2.

Importantly, the new policy only applies to employers and workplaces operating remotely. If there are employees physically present at a work location, no exceptions are being made by the DHS at this time. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, the DHS will evaluate this on a case-by-case basis.

The new policy provisions may be implemented until May 18, 2020, or until three business days after termination of the National Emergency, whichever comes first. This timeframe could be extended by the DHS, if necessary.

If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at .

Richard S. Rosenberg
Katherine A. Hren
Jessica A. Gomez
Ballard Rosenberg Golper & Savitt, LLP