25 March 2020

Temporary flexibility for I-9 review as US workforce in flux

As employers continue to deal with changes to their workforce as a result of COVID-19, employment laws similarly continue to be modified to deal with current realities, such as telework. Accordingly, please note that the requirement pursuant to Section 274A of the Immigration and Nationality Act (the “INA”) in which employers are generally required to review documentation for I-9 forms, which verify an employee’s eligibility to work in the United States, in the presence of the employee within three (3) days of hire, has been temporarily suspended to account for social-distancing and remote work realities. Accordingly, employers will not be required to be in the employee’s physical presence to review the relevant documentation and may inspect the relevant documents remotely (i.e. over video, email, fax etc.) within three (3) days of hire. This new allowance and flexibility shall be valid for 60 days (from March 20, 2020), or within three (3) days after the termination of a National Emergency, whichever comes first.

Employers should enter “COVID-19” as the reason for physical inspection delay in the “Additional Information” field of the form after physical inspection takes place once regular operations resumed. Employers should physically inspect the relevant document and add the date on which the documents were actually physically inspected on Section 2 or 3 once they are able to do so. Employers shall be responsible for providing documentation concerning remote onboarding or telework policies for their employees during an I-9 audit, and the temporary rules are only applicable to employers and workplaces that are operating remotely (if your employees are required to come to a physical location of the business, regular rules regarding completion of I-9s apply). Once normal operations resume, all employees who were on-boarded using this remote verification shall be required to report for in-person verification within three (3) days.

The Department of Homeland Security and ICE will continue to monitor the situation. Should you or any of your clients have any questions about these requirements, please contact Brooke Schneider, John Farnsworth or Theda Fisher who can assist.

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