As I wrote in an update last week, the Department of Homeland Security (DHS) recently relaxed I-9 requirements for employers operating remotely as a result of the COVID-19 crisis. However, the DHS guidance has left some questions unanswered.
Overview of The New Rules
Employers are temporarily no longer be required to review an employee’s identity and work authorization documents in the employee’s physical presence. This inspection can be accomplished remotely if the employer is working remotely.
According to USCIS, “if employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.”
When “normal operations resume,” all employees whose documents were presented via remote must, within three business days, undergo the required “in-person” examination of documents. The employer representative conducting the physical examination should write the words “documents physically examined” in the Additional Information box in Section 2, and should include their name and the date of inspection.
Remaining Questions About The New I-9 Guidance
If we have a policy of not keeping copies of documents presented as part of the I-9 process, what should we do with our copies of the remotely provided documents after the in-person inspection occurs?
The safest course of action will be to print out the electronic copies of documents received remotely. Instead of keeping them with the employee’s I-9, keep them in a separate file until DHS clarifies what should be done with them.
Is the employee required to bring in hard copies of the same documents they provided remotely?
Because the employee has already made their choice of documents when they provided them remotely, DHS may find it reasonable for you to ask to see hard copies of the same document(s). If the employee refuses or has lost one or more of those document(s), you may consider filling out a new Section 2 and attaching it to the original Section 2, with a brief explanation in the Additional Information field.
How is an employee expected to fill out Section 1?
Employees are still required to fill out Section 1 of the I-9 no later than the first day of employment. Unfortunately, DHS’s guidance does not address how employees are supposed to do this if they are operating remotely.
It looks as if you can email the Form I-9 to the employee, have the employee complete Section 1, sign, date, and return the completed form to you in an electronic form. (email, text, video, smartphone photo, fax…). Be sure to tell the employee to hold on to the original and bring it to you once operations resume.
What triggers the determination that “normal operations” have resumed?
Within three business days of the resumption of “normal operations,” the in-person document review must occur. Unfortunately, the guidance does not define “normal operations”.
Employers should probably require employees to complete the in-person document review if they are required to physically come into the office as part of the resumption of operations, even on an abbreviated or part-time basis.