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DHS Continues to Extend Flexibility in Completing Forms I-9 through August 19

20 Jul

Foster first reported in March of 2020 that the Department of Homeland Security (DHS) was providing flexibility to employers in completing the Form I-9, allowing employee documents presented in connection with the Form I-9 review process to be examined 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.  

This temporary policy, previously renewed in May and June, has again been extended for another 30 days through August 19, 2020 due to the ongoing national emergency related to COVID-19. 

These special provisions continue 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: 

  1. Employee continues to complete Section 1 on or before the first date of employment for pay; 
  2. 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; 
  3. Employer retains copies of the documents presented by the employee for Section 2; 
  4. 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; 
  5. 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; and
  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. 

E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire. 

The same DHS announcement confirmed that no additional extensions will be granted to employers who were served a Notice of Inspection (NOI) of Forms I-9 in 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