Best Form I-9 Practices in the Age of COVID-19

As an employer, you must complete and retain a Form I-9, Employment Eligibility Verification for everyone you hire to work for pay. For workplaces with remote operations due to the pandemic, the federal government has temporarily relaxed the in-person requirements involved in the Form I-9 process. However, you’re still required to fulfill your Form I-9 obligations, and if you want to use the virtual verification option, you must carefully follow the guidance and take extra steps. 

What is a Form I-9?

New hires must fill out Section 1 of Form I-9 on or before their first day of work to attest that they are eligible to work in the United States. You must review the form and supporting original documents – which employees are instructed to provide from a list of documents to prove their identity and work eligibility – and complete Section 2 of the form. This must be done within three business days of the employee’s first work day (or by the first work day if the employment is for three or fewer days). Form I-9 has a third section that must be completed upon the expiration of an employee’s employment authorization or documentation of employment authorization. Under normal circumstances, you or an authorized representative must meet with the employee and review documents in person to complete Section 2 or 3. 

The current version of Form I-9, which is dated Oct. 21, 2019, must be used. It’s available on the U.S. Citizen and Immigration Services website and can be filled out and stored in print or electronic form. 

Why must you complete a Form I-9? 

Employers are required to verify employees’ identity and eligibility to work in the United States, as per the Immigration Reform and Control Act of 1986. You must retain Forms I-9 for three years after the date of hire or for one year after employment is terminated, whichever is later, and be prepared to present them for inspection if requested by U.S. government officials. Failure to timely complete and retain copies of Forms I-9 can result in fines for each violation or, in the case of offenders who have a pattern of knowingly hiring unauthorized aliens, criminal penalties including fines and imprisonment. It is good practice for employers to also keep copies of identification and employment verification documents with I-9 form for possible good faith defense arguments.  

How has the pandemic impacted the Form I-9 process?

The mandate to complete Form I-9 in a timely fashion has not been impacted by COVID-19. However, the Department of Homeland Security is temporarily allowing some flexibility with regard to the in-person requirements for employers with remote operations to verify documentation and complete their portion of the form. Employers who qualify for this temporary exception must review the employee’s identity and employment authorization documents via a secure file transfer link, fax, secure/encrypted email, or, if necessary, by taking a screen shot of the documents shown to them over video using a company issued-device. You should indicate that the inspection was completed remotely because of COVID-19, with date and initials, in the “Additional Information” field on the form. Later, within three days of the resumption of normal operations, you must hold an in-person meeting and review the documents with the employee. You should then add the words “Documents physically examined” with the date and initials to the form.

Who’s eligible for remote review of documentation?

According to a DHS statement issued last March, “Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence.” However, DHS later provided somewhat conflicting guidance, stating, “If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9…. However, 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.”

The most conservative interpretation of DHS’s guidance calls for employers to only avail themselves of the virtual option if they have zero employees at any worksite. However, many employers fit into a gray area: they may have minimal amounts of essential staff working on-site, and many others working remotely as their job functions allow. If you fit into the latter category, you are not necessarily precluded from the remote option. But it’s essential that you carefully document the process by which you made the reasonable decision to protect your employees’ safety by instituting physical proximity precautions for Form I-9 completions. According to DHS guidance, “Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.” You should create and retain a file memo to any Form I-9 (whether print or electronic) explaining any deviation from your normal Form I-9 practices and attach government-issued stay-at-home orders and other advisories to provide context for the deviation. The memo should detail which employees are affected, what steps were taken and where relevant documentation could be found, in addition to expressing and confirming your commitment to compliance with the Immigration Reform and Control Act’s employment verification requirements. You may create a universal memo that covers all Forms I-9 from a specified period or attach an individual memo to each one.

The remote exception, which has been extended several times, is currently due to expire Jan. 31, 2021. However, another extension is likely as many companies continue to work remotely.

Using an authorized representative

Another option, which some employers may find preferable, is to authorize a representative to review the employee’s documents in person and fill out Section 2 or 3 of the form. This option, which is permanently available to employers, is usually utilized for onboarding remote employees, such as those who work in a different city from where the company has offices. An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. What makes this option particularly useful during the pandemic is that it’s acceptable to authorize a member of the employee’s household as your representative. But while this is lawful, you must bear in mind that you are liable for any violations in connection with the form or the verification process and you should therefore exercise extreme caution. Document that the “agent” is acting on your behalf by sending this person clear written instructions. Further, you should monitor the process via video conference and closely scrutinize the completed form and electronic document copies.

Security of documents and sensitive information

It’s important to remember you are responsible for the security of your employees’ sensitive personal information. If you are retrieving copies of documents and sensitive information electronically, work with your information security team to ensure safe transmission and/or capture of personal information. As Forms I-9 contain personally identifiable information (PII), they are prime candidates for a data breach if they are not handled properly. 

If you require assistance with your Form I-9 practices, our firm can assist you. Barst Mukamal & Kleiner is one of the longest-running immigration law firms in the United States and provides comprehensive immigration law services. Visit https://bmkllp.com/contact-us/.

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