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Due to COVID-19, DHS Allows Flexibility in Completing In-Person Form I-9 Verification Special Immigration Alert

On March 20, 2020, the U.S. Department of Homeland Security (“DHS”) announced that it is temporarily amending the Form I-9 verification and reverification procedures that require company representatives to physically review the original document(s) that verify U.S. work authorization.

Under INA § 274A and 8 C.F.R. § 274a, employers are required to verify original documents that confirm the work authorization of any new hire within three days of that new hire’s start date. With the 2019 novel coronavirus (“COVID-19”) pandemic, many companies have decided to voluntarily shut down their physical operations or to comply with mandatory government-imposed “shelter in place” orders. These restrictions make it impractical or impossible to do actual in-person physical verification of original work authorization documents required under the above Form I-9 regulations. As a result, DHS has amended its Form I-9 verification requirements to temporarily allow remote verification of the original documents through an electronic medium, such as video conferencing, fax, or scanned email attachment by the employer’s representative.

This exception will be in place for the next sixty calendar days or within three business days after the national emergency ceases, whichever date comes first.

In order to benefit from this remote Form I-9 verification process, an employer must adhere to the following:

  1. Review the original document(s) listed on page 3 of Form I-9 and provided by the new hire through an electronic medium (i.e., video conferencing, fax, or scanned email attachment) and then complete Section 2 of the Form I-9. It is important that employers complete the remote verification within three days of the new hire’s start date and attach a copy of the document(s) to the Form I-9 upon completing Section 2.
  2. Implement a formal written policy that expressly states how the employer is remotely verifying Form I-9 document(s) and append it to each Form I-9 remotely verified. Note that the remote verification policy must be applied consistently to all new hires. For example, if the employer directs the employee to provide an email scanned copy of his or her original document to verify the Form I-9, then it must follow that process for all new hires.
  3. Once normal employer operations resume, the employer must procure from the employee the same original document(s), which it remotely verified. The employer must view the original document(s) and then, finding them valid, inscribe on the Form I-9, at the “Additional Information” part of Section 2, the following: “COVID-19, Document(s) Physically Examined on [provide the date that the verification of the original document(s) occurred].” This examination of the original document(s) with the above notation inscribed on Section 2 of the Form I-9 must occur within three business days of the date normal business operations resume.

Please note the above only applies to employers ceasing physical operations at their work place. For those employers with employees reporting to work at their physical locations, remote verification cannot be implemented. Those employers must implement actual physical verification of the original document(s) to confirm Form I-9 work authorization.  If, however, the new hire is subject to a COVID-19 quarantine or lockdown, then the employer may implement the above remote verification process.

Also note that remote verifications and standard Form I-9 physical verifications can be completed by anyone the company delegates to verify the Form I-9 on its behalf.  Notaries, non-interested parties, and Form I-9 verification vendors, are all permissible. Some states, such as California, however, prevent such parties from verifying Forms I-9 on behalf of a company unless they are licensed and/or bonded.  Please make sure to check if your state has such a requirement.

Finally, for those employers undergoing an I-9 U.S. Immigration and Customs Enforcement audit, DHS has announced a sixty-day extension to give those employers additional time to produce their Forms I-9 in response to such audit.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 81

About this Author

Jang Hyuk Im, epstein becker green, labor, employment

JANG HYUK IM is a Member of the Firm in the Labor and Employment practice, in the firm's San Francisco office. For more than a decade, he has advised and assisted companies in a wide range of immigration and other employment-related matters.

Mr. Im:

Counsels employers in securing all documentation, visas and permits necessary to facilitate the admission of individuals in temporary working visa classifications into the United States

Assists clients to retain these foreign nationals as full-time...

Patrick G. Brady, epstein becker green, labor employment, erisa, wage

Patrick G. Brady is a Member of the Firm in the Labor and Employment practice, in the firm's Newark office. He has worked extensively on complex wage and hour and other employment litigation and ERISA, WARN Act, and Family Leave Act matters.

Mr. Brady's experience includes:

Representing employers in class action and collective action litigation involving FLSA/state wage and hour issues

Representing employers in wrongful discharge, sexual harassment, breach of contract, discrimination/...

Jungmin Choi, Employment, Labor and Workforce Management, Immigration Law, Epstein Becker and Green, Law Firm

Jungmin Choi is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the Newark office. She concentrates her practice on employment-based immigration law. In 2016, Ms. Choi was recommended in The Legal 500 United States, for Immigration.

Ms. Choi's experience includes:

  • Advising employers in variety of industries on business-related immigration matters involving the recruitment, hiring, transfer, and retention of foreign nationals in the United States
  • ...
Senior Counsel

ARIT BUTANI* is a Senior Attorney in the Immigration Law Group, in the San Francisco office of Epstein Becker Green.

Mr. Butani:

  • Provides strategic counsel to clients of all sizes and from various industries—including software companies, biotechnology companies, architecture firms, financial institutions, manufacturing companies, brand marketing companies, entertainment companies, IT consulting firms, and staffing agencies, among others—on all aspects of immigration
  • Advises on a wide range of business immigration issues, including PERM, PERM...