DHS Announces “Flexibility” in Form I-9 Completion for Employers Operating Remotely Due to Coronavirus
By Thomas Brechtel, J.D., Form I-9 Compliance, LLC
Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced on March 23, 2020, that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).
Virtual Verification “Now,” In-Person Verification “Later”
Deferment of the physical presence requirements applies to employers and workplaces that are operating remotely. Effectively, DHS has established a “virtual verification now, in-person verification later” policy for where applicable, under the following conditions:
- Employers and workplaces that are operating remotely will not be required to verify Identity and Employment Eligibility Documentation in-person and can instead review them remotely within three days of the employee’s start date, utilizing video conferencing, fax, or email to conduct the remote verification.
- Employers must obtain, inspect, and retain copies of the supporting documents, within three business days.
- Employers must also provide written documentation of their remote onboarding and telework policy.
- This flexibility is in effect for 60 days or within three business days after the termination of the National Emergency, whichever comes first.
- Once normal operations resume, the new hire has to report to their employer within three days for in-person verification of the documents. After in-person verification has occurred, the employer should enter “COVID-19” in the Section 2 additional information box or Section 3 (if the remote examination was for re-verification purposes). The employer should also annotate “documents physically examined” and the date.
In-Person Verification “Now”
If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
Employers may always designate an authorized representative to act on their behalf to complete Section 2. DHS reiterated their longstanding policy that employers may designate “any person as an authorized representative” so long as that person meets in-person with the employee, reviews their original documents, and completes and signs Section 2. However, remember that emloyers are responsible (and liable) for any errors, omissions, or issues during the Form I-9 completion.
The full COVID-19 news release by DHS regarding flexibility in requirements related to the Form I-9 can be found here.
“Remote Agent” Options Available for In-Person Verification “Now”
Employers can utilize a “Remote Agent”—such as Form I-9 Compliance, LLC—as their authorized representative to conduct an in-person “touch and feel” document verification of a newly hired remote employee. Employers choosing this option can ask the employee to pick a nearby individual (perhaps a friend, neighbor, or family member) with clear instructions on the Section 2 completion processes. Form I-9 Compliance LLC’s remote agent option is integrated with its electronic Form I-9, which guides the individual through the necessary steps, virtually eliminating potential errors, omissions or discrepancies. Employers utilizing this remote option do not have the follow-up requirements as related to the In-Person Verification “Later” processes.
To ensure compliance using remote agent option, we recommend that employers establish standard operating procedures that clearly state the types of people who may act as an agent for your organization. Provide clear instructions for completing the form. Use a standardized communication that provides instruction and FAQs for the new employee and the agent who will be completing the form. In addition to detailing the process for completion, it should stress the importance of following the Form I-9 completion timelines. The document should include instructions for reviewing Section to confirm the information is correct; request original documents from the list of acceptable documents; and include instructions on completing required Section 2 information.
Review all remotely completed I-9s. Common mistakes include improper documents accepted and recorded, missing or transposed document information, and failure to retain photocopies when required by the employer or E-Verify.
E-Verify Extends Timeframe for “Taking Action” to Resolve SSA/DHS Tentative Nonconfirmations
E-Verify is temporarily extending the timeframe to take action to resolve Tentative Nonconfirmations (TNC) from the Social Security Administration or Department of Homeland Security due to office closures to the public.
Under the new temporary policies, employers are still required to create E-Verify cases for new hires within three business days from the date of hire. If the E-Verify case creation is delayed due to the employer’s office closure or other COVID-19 precautions, the employer should select “Other” in E-Verify and enter COVID-19 as the reason. Employers are not permitted to take adverse actions against an employee in the event their E-Verify case is in interim status.
Thomas Brechtel, J.D. is the Chief Revenue Officer at the California-based Form I-9 Compliance, LLC, which develops comprehensive I-9 and E-Verify monitoring and compliance solutions. Thomas is focused on proactively aiding organizations in developing and maintaining compliant immigration related employment practices by providing; I-9 Policy Review (SOP’s), Electronic I-9 Transition Planning, assistance in developing New Hire Procedures and I-9 & E-Verify Training. His ability to understand the client’s needs and create a customized implementation strategy further differentiates Form I-9 Compliance in the marketplace.
TruView is proud to be an Alliance Partner with Form I-9 Compliance. TruView has integrated I-9 and E-Verify services, to include Form I-9 Compliance’s remote services into its platform and is available to discuss training and onboarding for this helpful compliance technology. To learn more about compliant remote hiring options, contact TruView today!