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DHS Provides Flexibility in Completing Form I-9 and Responding to Form I-9 Audits Due to COVID-19

20 Mar

On March 20, 2020, the Department of Homeland Security (DHS) announced 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.) under certain circumstances for employers with employees taking physical proximity precautions due to COVID-19. This temporary option is available for the next 60 days or up until 3 business days after the termination of the National Emergency, whichever comes first.

This special provision applies 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 2: 

  1. Employer inspects 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, Employer enters, “COVID-19” in the Additional Information field in Section 2 as the reason for the delay in physically inspecting the document; and
  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 is 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 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 have recently received a Notice of Inspection (NOI) of Forms I-9, DHS announced an extension of time to respond.  “Effective March 19, 2020, any employers who were served NOIs by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.”

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