Form I-9 Compliance during the COVID-19 Emergency

May 5, 2020

The COVID-19 pandemic has presented challenges and changes to many aspects of the employment relationship. Form I-9 and E-Verify requirements are among them. The Department of Homeland Security has issued temporary policies for satisfying employers’ obligations to complete the verification process and associated forms.

Section 1 of the Form I-9 must be completed by the employee no later than the first day of employment. There are no changes to current requirements for completion of Section 1.

Section 2 of the Form I-9 requires completion by the employer within three (3) business days of the employee’s first day of employment and involves review of the employee’s identity and employment authorization documents. Although there are no changes to the process for employees who are physically present at the workplace, the DHS has approved flexibility to allow for remote inspection of documents for employers and workplaces operating remotely due to COVID-19.

Employers may inspect documents using video link, fax, or email, and retain copies of the documents for purposes of Section 2. A physical inspection of the documents is still required but can be deferred until normal operations resume. Employers should enter “COVID-19” in the Additional Information field of Section 2 as the reason for the delay in the physical inspection. Once a physical inspection can be completed, employees who were on-boarded using remote verification must report to their employer within three (3) business days for in-person verification of identity and employment eligibility documentation. Employers should add, “documents physically inspected” along with the date of the inspection to Section 2 (or Section 3, as appropriate), and the form should be signed by the individual performing the inspection, once the physical inspection has been completed.

Employers using an electronic Form I-9 (that does not have the “Additional Information” field) are advised to attach a note, physically or electronically, to the employee’s Form I-9 with the information that would otherwise be listed in the Additional Information field. Employers using E-Verify may follow the same remote verification process and create an E-Verify case for the new hire within three (3) business days of the date of hire. If case creation is delayed due to COVID-19 precautions, an employer should select “Other” from the drop-down list and enter “COVID-19” as the specific reason.

For now, remote verification procedures may be used until at least May 19 or within three (3) business days of when the National Emergency terminates, whichever comes first. Employers relying on these temporary I-9 procedures must maintain written documentation of the remote onboarding and telework policy for each covered employee.

The temporary policies also apply to certain List B identity documents. Many states, including Wisconsin, have either closed or reduced operations in their department of motor vehicle offices. In conjunction with these closures and reductions, some departments have announced blanket temporary extensions of identification cards and driver’s licenses. Considering these circumstances, DHS has issued a temporary policy allowing employers to accept cards and licenses that show an expiration date on or after March 1, 2020, that are covered by a state’s blanket temporary extension because of coronavirus. Employers must record the document’s actual expiration date in Section 2 and enter “COVID-19 EXT” in the Additional Information field. DHS recommends that employers also print the state’s announcement confirming the automatic extension and attach that sheet to the Form I-9. For these extended documents, employees are not required to present a valid unexpired List B document later.

Beginning May 1, the temporary policy also applies to List B documents expiring on or after March 1, 2020, that may not otherwise be extended by the issuing authority. For these documents, employers should record the information in Section 2, as applicable, and enter “COVID-19” in the Additional Information field. Within 90 days of the DHS’ termination of the temporary policy, employees will be required to present a valid, unexpired document to replace the expired document presented when initially hired. At that time, employers will need to record the number and other required document information from the actual document presented, and initial and date the change. It is best if the employee can present the replacement of the actual document that was expired, but, if necessary, the employee may choose to present a different List A or List B document or documents. The new document information should be recorded in the Additional Information field.

One final note, as a reminder, effective May 1, 2020, employers must use the new version of Form I-9 (with an issuance date of October 21, 2019).

Leslie Sammon
Leslie Sammon