On March 20, 2020, the U.S. Department of Homeland Security (“DHS”) announced that it is temporarily amending the Form I-9 verification and reverification procedures that require company representatives to physically review the original document(s) that verify U.S. work authorization.

Under INA § 274A and 8 C.F.R. § 274a, employers are required to verify original documents that confirm the work authorization of any new hire within three days of that new hire’s start date. With the 2019 novel coronavirus (“COVID-19”) pandemic, many companies have decided to voluntarily shut down their physical operations or to comply with mandatory government-imposed “shelter in place” orders. These restrictions make it impractical or impossible to do actual in-person physical verification of original work authorization documents required under the above Form I-9 regulations. As a result, DHS has amended its Form I-9 verification requirements to temporarily allow remote verification of the original documents through an electronic medium, such as video conferencing, fax, or scanned email attachment by the employer’s representative.

This exception will be in place for the next sixty calendar days or within three business days after the national emergency ceases, whichever date comes first.

In order to benefit from this remote Form I-9 verification process, an employer must adhere to the following:

  1. Review the original document(s) listed on page 3 of Form I-9 and provided by the new hire through an electronic medium (i.e., video conferencing, fax, or scanned email attachment) and then complete Section 2 of the Form I-9. It is important that employers complete the remote verification within three days of the new hire’s start date and attach a copy of the document(s) to the Form I-9 upon completing Section 2.
  2. Implement a formal written policy that expressly states how the employer is remotely verifying Form I-9 document(s) and append it to each Form I-9 remotely verified. Note that the remote verification policy must be applied consistently to all new hires. For example, if the employer directs the employee to provide an email scanned copy of his or her original document to verify the Form I-9, then it must follow that process for all new hires.
  3. Once normal employer operations resume, the employer must procure from the employee the same original document(s), which it remotely verified. The employer must view the original document(s) and then, finding them valid, inscribe on the Form I-9, at the “Additional Information” part of Section 2, the following: “COVID-19, Document(s) Physically Examined on [provide the date that the verification of the original document(s) occurred].” This examination of the original document(s) with the above notation inscribed on Section 2 of the Form I-9 must occur within three business days of the date normal business operations resume.

Please note the above only applies to employers ceasing physical operations at their work place. For those employers with employees reporting to work at their physical locations, remote verification cannot be implemented. Those employers must implement actual physical verification of the original document(s) to confirm Form I-9 work authorization.  If, however, the new hire is subject to a COVID-19 quarantine or lockdown, then the employer may implement the above remote verification process.

Also note that remote verifications and standard Form I-9 physical verifications can be completed by anyone the company delegates to verify the Form I-9 on its behalf.  Notaries, non-interested parties, and Form I-9 verification vendors, are all permissible. Some states, such as California, however, prevent such parties from verifying Forms I-9 on behalf of a company unless they are licensed and/or bonded.  Please make sure to check if your state has such a requirement.

Finally, for those employers undergoing an I-9 U.S. Immigration and Customs Enforcement audit, DHS has announced a sixty-day extension to give those employers additional time to produce their Forms I-9 in response to such audit.

Epstein Becker Green will continually monitor how the COVID-19 pandemic will impact the Form I-9 verification process and provide updates.  In the meantime, should you have any questions or wish further guidance on this or any immigration issue during the current crises, please contact one of the authors or your Epstein Becker Green attorney.

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