The Department of Homeland Security (“DHS”) announced that its flexibility related to in-person Form I-9 compliance will end on November 19, 2020. As a general reminder, this flexibility was adopted for employers and workplaces that operated 100 percent remotely as a result of COVID-19. While employers are normally required to perform an in-person review of an employee’s identity and employment authorization documents, the DHS’s flexibility permitted inspection by other means such as video link, fax, and/or email.
As businesses are adjusting to COVID-19 and slowly starting to reopen in person operations, employers need to ensure they are complying with all Form I-9 requirements. To assist with compliance, the DHS released additional guidance and clarity. In this guidance, the DHS emphasized that:
- An employee’s documents must be verified in-person within three (3) business days of that employee physically returning to the workplace.
- ICE will not require employers to mandate that newly hired employee report to work in advance of any phased reopening procedure established by the company or state and local authorities merely for verification.
- Once the employee is physically present at a work location, no exceptions are being implemented for in-person verification.
- If the documents that were valid when originally presented are no longer valid at the time of “in-person” verification, no additional documentation is required.
- If the documents that were originally presented are lost or unavailable, the employee should fill out a new Form I-9 and present any relevant combination of List A, B, or C documents. The remote hire date should be used on the new form and the new I-9 should be attached to the old I-9 with a note indicating the original documents were unavailable at the time of verification.
COUNSEL TO MANAGEMENT:
While the DHS is likely to announce an extension to its flexibility, employers should be aware of the necessary steps they must take as the country slowly reopens. If you have any questions about how to comply with Form I-9 requirements, contact the experts at The Saqui Law Group.