Temporary Flexibility Announced for Employers’ I-9 and E-Verify Compliance

March 26, 2020

In light of the COVID-19 National Emergency, the Department of Homeland Security announced last week that identity and work authorization documents for completing Section 2 of Form I-9 can be reviewed by the employer remotely rather than in the physical presence of the newly hired employee, but this provision applies only to employers and workplaces that are operating remotely. Such employers can use this method until May 19, 2020 *OR* within three business days after the termination of the National Emergency, whichever comes first.

If employers elect to use the temporary guidelines, they must inspect the Section 2 documents remotely ― for example, over video conference, email or fax ― within three business days of the first day of work, and must obtain, inspect, and retain copies of the documents for purposes of completing Section 2. Further, employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field once physical inspection has taken place after normal operations have resumed.

Once the documents have been physically inspected, the employer should 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. DHS has further said that employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee.

In contrast, if there are employees physically present at a work location, no exceptions are being implemented. 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. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process.

On the E-Verify front, due to Social Security Administration (SSA) office closures in light of COVID-19, E-Verify is extending the timeframe to take action to resolve SSA Tentative Nonconfirmations (TNCs). Employers still are required to notify their employees about any TNC as soon as possible and find out whether the employee chooses to take action to resolve the TNC. The employer should notify E-Verify of their employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS. Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

During the national emergency, employers are still required to create cases for their new hires within three business days from the date of hire. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.

USCIS released an FAQ on its temporary policies around I-9 and E-Verify on April 3.