DHS Allows Remote Review of Form I-9s During COVID-19 Emergency

Author: Robert S. Teachout, Brightmine Legal Editor

March 23, 2020

The Department of Homeland Security (DHS) has announced that it is temporarily relaxing Form I-9, Employment Eligibility Verification document review requirements during the coronavirus (COVID-19) pandemic. Employers whose employees are working remotely to limit physical proximity during the national emergency will be permitted to review their employees' identity and employment authorization documents remotely.

Employers are required to complete the Form I-9 to verify and document an employee's identity and employment authorization. As part of the normal verification process, the employer must view and record in Form I-9, Section 2, the original verification documents presented by the employee in the employer's physical presence and compare any identification information on the documents to the employee.

Key details of the temporary provisions include:

• The exemption applies only to employers and workplaces that are operating remotely. If any employees are physically present at a work location, no exceptions will be permitted at this time for in-person verification of eligibility documentation.
• Employers who use the remote review option must provide written documentation of their remote onboarding and telework policies for each employee.
• DHS will evaluate the use of the remote option on a case-by-case basis if newly-hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols.
• Employers may inspect the Section 2 documents remotely (e.g., over video link, fax or email) and obtain, inspect, and retain copies of the documents within three business days.
• Once normal operations resume and physical examination of original documents resume, employers must note "COVID-19" as the reason for the delay. Additionally, employers should add "documents physically examined" with the date of inspection to the Section 2 additional information field, or in Section 3 (for recertifying eligibility) if applicable.

These flexibility provisions may be implemented by employers for 60 days from the date of the DHS notice (March 20, 2020) or until within three business days after the end of the national emergency, whichever comes first.