U.S. Immigration and Customs Enforcement recently announced that it is extending the remote I-9 verification for employers and workspaces operating remotely through December 31, 2020. In March, the Department of Homeland Security (DHS) announced that it would defer the physical presence requirement associated with the Form I-9. Under the guidance, employers who have employees working remotely are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the identity and employment authorization documents remotely (e.g., over video link, fax, email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2 of the Form I-9. It is the employer’s burden to maintain policies regarding work from home and remote status for employees who are being remotely verified.
Once in-person operations resume, all employees who were on-boarded using remote verification must report to their employer, within three business days, for in-person verification of identity and employment eligibility documentation for Form I-9. The employer must then document the delay in physical inspection by writing “COVID-19” and “documents physically examined” with the date of inspection in the Additional Information Field of the Form I-9. DHS reviews the Form I-9s completed remotely on a case-by-case basis so employers should fully document the circumstances regarding the completion of the Form I-9 if it is not completed normally, in-person. None of these exceptions apply for in-person verification if the employer does not have a Work From Home policy.
If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.