With the recent announcement from the Biden administration that the COVID-19 national and public health emergencies will end this May, the temporary US Department of Homeland Security guidance that permitted businesses operating remotely due to COVID-19 precautions to conduct remote Form I-9 document inspections will expire on July 31, 2023.
The Form I-9 flexibility provisions were announced initially by the Department of Homeland Security (DHS) on March 20, 2020, and subsequently extended several times.
Under the terms of the flexibility provisions, employers that are operating remotely may complete Form I-9 Section 2 document review remotely (e.g., over video link, fax, or email) within three business days of hire. The flexibility provisions are available for employees who are working remotely due to COVID-19 precautions “until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” Form I-9 completion for intentionally remote hires should be performed in person by either the employer or an authorized representative.
With the termination of the flexibility provisions, employers who conducted remote Form I-9 document review should begin to plan for and implement the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.
Additional agency guidance on in-person verification should be forthcoming. In the interim, consider the following:
- According to the DHS, once the documents have been physically inspected, the employer should add “COVID-19” and “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.
- The original guidance presumes the same employer representative who reviewed the documents remotely will also conduct the in-person review. However, if the person who virtually examined the document(s) is not the one who performs the physical inspection, the DHS advises that the employer representative conducting the physical inspection complete a new Section 2 of the Form I-9 and attach that to the complete remote inspection Form I-9.
- A document that has expired in the time since it was presented virtually can still be physically reviewed and verified; however, employers must distinguish expired List A or List C documents that do not require employment eligibility reverification from those that do. Physical review and reverification are separate processes and obligations.
- Employees might no longer possess the documents that were presented for remote review. In this instance, the DHS has indicated that if it is not feasible to insert all the new information in the “additional information” box, it would be acceptable to complete a new Section 2, with signature, and to attach the new Section 2 to the original Section 2, with a brief explanation in the “additional information” box.
- In some instances, the employee will be working remotely and not in proximity to the employer. Such a situation may require relying on the services of an authorized representative for completing Section 2 of the Form I-9. Anyone other than the employee may serve as an authorized representative. Once Section 2 is completed by an authorized representative, the employer should review the form to ensure that the form appears to be free of errors. The employer is liable for any paperwork deficiencies in the Form I-9 completed by the authorized representative.
Morgan Lewis will continue to monitor developments in the space.