DHS Announces Flexibility in Form I-9 Compliance Requirements

March 22, 2020

The US Department of Homeland Security will defer the physical presence requirements for Form I-9 completion for employers and workplaces that are operating remotely and permit virtual review, which must be timely. In-person verification must occur within three days of return to worksite or the end of the national emergency.

In response to the challenges that employers are facing when seeking to comply with Form I-9 requirements during the coronavirus (COVID-19) emergency, the US Department of Homeland Security (DHS) announced Friday 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). Pursuant to this guidance:

  • The physical in-person review of an employee’s documents proving identity and eligibility to work may be performed remotely on an interim basis
  • This exception applies only to employers with employees taking physical proximity precautions due to COVID-19; employees physically present at a work location are not eligible for this exception
  • In lieu of an in-person review, employers must perform a remote inspection via video, fax, scan/email, etc. Employers must obtain and retain copies of the documents presented by the employee
  • This remote review is subject to the three-day timeliness rule
  • Employers need to enter “COVID-19” in the Section 2 Additional Information field to indicate that the initial review was not performed in-person

Additional Guidance

  • An in-person physical inspection of all remote verifications must take place within three days of a return to normal operations
  • 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 should retain the copies of documents from the remote review as part of the Form I-9
  • Employers performing remote or virtual verification need to memorialize their remote onboarding and telework policy for each employee. This likely means that in addition to having a general policy, the employer needs to provide a date/time log of the steps taken and the method of remote verification for each employee and retain that with the Form I-9.

These provisions are expected to remain in effect until May 20, 2020, or within three business days after the termination of the national emergency, whichever comes first.

Authorized Representatives

As explained in our alert of March 16, 2020, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including 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 the employer’s behalf. The temporary relaxation of the document review requirements described above does not change the employer’s ability to use an authorized representative for in-person completion of Form I-9.


If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Laura C. Garvin