COVID-19 Update: DHS Modifies I-9 Physical Presence Requirements

On March 20, 2020, the Department of Homeland Security announced that it will defer the physical presence requirements associated with I-9s. 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 physical presence. The new process is only for employers and workplaces that are operating remotely. 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. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis.

The announcement sets forth the following requirements for completing I-9s:

• Employers must still inspect the Section 2 documents remotely (i.e. over video, fax, or email, etc.) and obtain, inspect and retain copies of the documents, within 3 business days for purposes of completing Section 2.

• Employers must provide written documentation of their remote onboarding and telework policy for each employee.

• After normal operations resume, within 3 business days, employers should still make sure a physical inspection takes place. During the physical inspection, employers should include the following on the I-9:
  
  
  • Enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field, and
  • Add “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.

This new remote process due to COVID-19 may be implemented by employers for a period of 60 days from March 20, 2020, or within 3 business days after the termination of the National Emergency, whichever comes first.