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DHS Again Extends Flexibility in Completing Forms I-9 Through July 19th and Continues to Give Employers More Time to Respond to Certain Form I-9 Audits Due to COVID-19

17 Jun

Foster previously reported in March of 2020, on the Department of Homeland Security (DHS) announcement that documents presented by employees in connection with the Form I-9 can be reviewed remotely (e.g. via video link, fax, or e-mail, etc.) rather than in the employee’s physical presence under certain circumstances for employers with employees taking physical proximity precautions due to COVID-19.  In May, this policy was extended for an additional 30 days. 

This temporary guidance has recently been extended further for an additional 30 days through July 19, 2020 due to the continued precautions related to COVID-19.  

This special provision continues to apply only to employers and workplaces that are operating remotely. Employers wishing to use this option must maintain written documentation of their remote onboarding and telework policy for each employee and should follow the steps below for completing Section: 

  1. Employer obtains, inspects, and retains Section 2 documents remotely (e.g. over video link, fax, or e-mail, etc.) and completes Section 2 within three business days of the employee beginning work; 
  2. Employer retains copies of the documents presented by the employee for Section 2; 
  3. Once physical inspection is able to take place after normal operations resume, Employee enters, “COVID-19” in the Additional Information field in Section 2 as the reason for the delay in physically inspecting the document; 
  4. Once the documents have been physically inspected, the employer adds, “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.

Under this special procedure, in person-verification of the documentation continues to be required within three business days after normal operations resume.  

Employers wishing to use this special procedure must carefully document their remote onboarding and telework policy with the employee’s Form I-9.  

There are no exceptions to in-person verification for work locations where employees are physically present. If however, newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate these circumstances on a case-by-case basis.  

Additionally, the employer may continue to designate an authorized person to complete and sign the Form I-9 on the employer’s behalf. This would involve: 

  1. The employee completing Section 1 on or before the first day of employment; 
  2. In coordination with Human Resources, the employee identifying a colleague, friend, neighbor, relative, or other person designated by Human Resources to serve as a verifier in Section 2; 
  3. The employee bringing his or her documents to the designated verifier; 
  4. In coordination/communication with Human Resources, the designated verifier reviewing the original documents with the Employee and completing Section 2 of the Form I-9 within three business days of the date the Employee begins work for pay; 

With respect to those employers who received a Notice of Inspection (NOI) of Forms I-9 during March 2020, DHS has re-confirmed that additional time has been allowed in which to respond. “Employers who were served notices of inspection (NOIs) by ICE during the month of March 2020 and had not already responded were granted an automatic extension for 60 days from the effective date. ICE will grant an additional extension of 30 days to these employers.”  This means that the responses to the NOIs are now due on July 19th. DHS has indicated that this will be the final extension relative to NOIs served by ICE during the month of March 2020. 

Foster will continue to monitor government procedural changes and other action related to COVID-19 and will provide additional updates on the immigration-related impacts of COVID-19 via our firm’s website at www.fosterglobal.com