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I-9 Flexibility for Employers Due to COVID-19

The Department of Homeland Security (“DHS”) has announced temporary flexibility related to Form I-9 requirements.

  • Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s presence until normal operations resume. Employers, however, are required to inspect Section 2 documents remotely and obtain, inspect and retain copies of the documents within three business days.
  • Employers who wish to utilize themselves of this new option must prepare written documentation of their remote onboarding and telework policy for each employee.
  • Once normal operations resume, all employees onboarded using remote verification must report to their employer within three business days for an in-person verification and present their employment eligibility documentation. Once the physical inspection takes place, employers should enter “COVID-19” as the reason for the physical inspection delay in Section 2’s “Additional Information” field.
  • Employers with employees still physically present at a work location may not avail themselves of this provision. There are no exceptions currently available for such employers.
  • Employers not eligible for the exception, however, may have some options available to them. Recent updates to FormI-9 allow an employer to designate a representative to review new hires’ documents. Such representatives can be a law firm, a vendor, a notary, or a local employee. Employers choosing this route, however, should exercise caution when representing a third-party to ensure the representative is well-versed in Form I-9 compliance.
  • Applicable employers may implement these provisions for a period of 60 days from the notice’s date or within three business days after the termination of the National Emergency, whichever comes first.

Employers with questions on Form I-9 compliance or struggling to navigate through the ever-changing landscape of the workplace in light of the National Emergency should reach out to employment counsel for up-to-date advice and counsel.

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