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DHS allows flexibility in physical review of Form I-9

Due to the 2019 novel coronavirus (COVID-19) pandemic, many employees are working remotely to combat community spread. The U.S. Department of Homeland Security (DHS) recognizes this and announced that employers can defer the physical review of documents needed to complete Section 2 of the Form I-9. Employers who now have remote employees will not be required to review the subject employee’s identity and employment authorization documents physically. However, employers must still review the documents and complete Section 2 in a timely manner.

Under this new guidance, employers must inspect Section 2 documents remotely, for example using a video link, fax or email. Further, they must obtain, inspect and retain copies of the documents, within three business days of the first date of employment, for purposes of completing Section 2. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

DHS will require physical inspection once normal operations resume. At that time, the employer must have the employee bring in the documents and physically inspect them within three business days.

After physical inspection, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on Form I-9 or to Section 3, as appropriate. These provisions may be implemented by employers for a period of 60 days from March 19, 2020 or within three business days after the termination of the National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, as declared by U.S. President Trump on March 13, 2020, whichever comes first.

Employers who use this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers. Any potential audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

This flexibility only applies to employers and workplaces that are operating remotely. If there are employees physically present at a work location, exceptions are not being granted at this time. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis.

While Godfrey & Kahn attorneys aim to keep you apprised of the latest COVID-19 developments, the situation remains fluid. Our COVID-19 Resource Center has more practical advice like this on the legal considerations impacting your organization's coronavirus response. It remains important to consult federal, state, county and city health agency websites regularly.

For up-to-the-minute updates on coronavirus-related policies and their legal implications for your business, contact our Labor, Employment & Immigration Practice Group.

March 20, 2020

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