DHS Provides COVID-19 Exceptions to I-9 Compliance

The Department of Homeland Security (DHS) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).  Special exceptions will apply for employers who are taking physical proximity precautions due to COVID-19. If  employees are still physically present at a work location, these exceptions will not apply, and case by case consideration will be applied to newly hired employees or existing employees who are subject to COVID-19 quarantine or lockdown protocols.

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.

DHS implemented this policy for 60 days from March 20, 2020 through May 19, 2020, extended this policy for an additional 30 days on June 16, 2020, July 19, 2020 and August 18, 2020, and on November 18 announced another extension to December 31, 2020 due to the continued precautions related to COVID-19. All employees onboarded using this remote verification option must present the physical documents within three business days of normal business operations resuming, and employers should be ready to complete Section 2 of the Form I-9 within three business days of the conclusion of this policy. Employers also should 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. 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 to section 3 as appropriate.

Employers who utilize this remote Form I-9 verification process should document their telecommute and remote work onboarding policy during this time, and attach this policy to each Form I-9 that is remote verified.

The immigration attorneys at Ryan Swanson are closely monitoring government regulations and policies due to the current COVID-19 global pandemic. Please reach out to an experienced immigration attorney before implementing changes to your existing I-9 policy and procedures.