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Department of Homeland Security: Temporary Flexibility for Employers’ I-9 Compliance

The Department of Homeland Security (DHS) has announced that, because of the National Emergency due to the coronavirus (COVID-19) pandemic, employers may temporarily inspect Form I-9, Employment Eligibility Verification, Section 2 documents remotely (e.g., over video link, fax or email, and so on) and obtain, inspect, and retain copies (rather than originals) of those documents until normal business operations resume. 

This policy will remain in effect 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 government in a future announcement, if necessary.

In making the policy more flexible, DHS is recognizing that companies and organizations are having to temporarily shift to a remote working basis.

Eligible Employers, Workplaces

  • Only applies to employers and workplaces operating remotely.

  • If HR is remote or inaccessible to employees, physical proximity restrictions apply, or newly hired employees or existing employees are subject to quarantine or lockdowns, this option may be available on a case-by-case basis.

  • Employers may still rely on using authorized representatives to act on their behalf to complete Section 2. The authorized representative may be any person. Employers must keep in mind they remain liable for any violations committed by an authorized representative.

Key Requirements 

Even with the new flexibility, the three-day rule still applies — employers must conduct the remote inspections within three business days of the employee’s start date and retain the documentation provided.

In addition:

  • Employers should enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information field.

  • Employers using E-Verify should submit cases within three business days of the remote inspection.

  • Once normal business operations resume, employees onboarded remotely must report within three business days for in-person verification.

  • Once documents have been physically inspected, employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field or to Section 3, as appropriate. If the original certifier is not available for the physical re-examination, a new Section 2 should be completed and signed by the employer.

  • Employers who use the remote option must provide written documentation of their remote onboarding and telework policy for each employee. The burden is on the employer to document that the remote option was necessary.

  • Employees will have a choice as to documentation presented under List A, B, and C for the in-person re-verification. It does not need to be the same documentation that was provided virtually.

  • Employees with documentation that expires prior to the physical re-examination will need to provide unexpired documentation that would be re-verified in Section 3.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 83

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About this Author

Michael H. Neifach, Jackson Lewis, Employment visa Lawyer, border security matters attorney
Principal

Michael Neifach is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is a recognized leader on immigration, visa and border security matters, and he is Co-Leader of the firm's Immigration practice group.

Mr. Neifach has held senior positions at the White House Homeland Security Council, U.S. Department of Homeland Security, and U.S. Immigration and Customs Enforcement (ICE). He served as General Counsel at ICE from July 2007 through January 2009. Following his government service, Mr. Neifach oversaw...

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Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National Verification Committee, which liaises with USCIS, ICE and OCAHO on I-9, E-verify and related worksite issues. Ms. Peck recently served on the AILA National USCIS Benefits Committee, the Interagency Committee, the Annual Conference Committee, previously chaired the AILA FOIA Liaison Committee, the AILA Comprehensive Reform Committee (2010-2011) and is a founding member of the Global Migration Action Group (2009 to present). She served as Chair of the AILA National Executive Office for Immigration Review (EOIR) liaison committee (2008-2010). Ms. Peck also served as Chair of the Strategic Planning Committee for AILA (2008-2009) and served on the Spring Conference committee (2008-2010). She was chosen as the editor of the AILA Midyear Conference materials in 2010, and past Chair of the Immigration and Customs Enforcement (ICE) liaison committee (2004-2006). She is past Chair of the AILA Iowa-Nebraska chapter (2001-2003), and previously served as its treasurer (1999-2000).

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