Temporary Flexibility to I-9 Requirements For Employers with Remote Work Arrangements

In response to the new challenges presented by the coronavirus pandemic and remote work operations, the Department of Homeland Security (DHS) announced it will temporarily defer the physical presence requirement for Section 2 documents on Form I-9, Employment Eligibility Verification.  This change allows employers to complete an I-9 for new hire employees and for reverifications using video, email or fax review of an individual’s work authorization documents. 

The flexible I-9 policy will remain in effect until May 18, 2020, or until three business days after termination of the National Emergency, whichever comes first.  The timeframe may be extended by future announcement, if necessary. 

Which employers qualify to do I-9 verification remotely? 

Employers and workplaces can use the flexible procedures if they are operating remotely due to COVID-19.  Employers that continue to have employees physically present at the work location still must comply with all regular I-9 requirements, including in-person document inspection. 

Please note, even with the new flexibility, the three-day rule still applies.  Employers must conduct the remote inspections of the Section 2 documents within three business days of the employee’s start date and retain the documentation provided.  And when normal business operations resume, employers will need to physically inspect documents for any employee whose original identification documents were not physically examined by the employer.

What steps should employers take to remotely verify employee eligibility? 

Employers can review I-9 work authorization documents virtually by video, or by email or fax.  The employee should still be required to complete Section 1 by the first day of hire and email a scanned copy of the completed document to the employer along with the work authorization documents.  The employer’s authorized representative should print and sign Section 2 within three business days of the employee’s hire date.  In the “Additional Information Section 2, the employer should note “COVID-19” as the reason for the initial remote review.  When the employer’s normal business operations resume, the employer should update the Additional Information Box to include “Documents physically examined on [DATE]/COVID-19” and sign and date the revision. 

Please contact one of MPBA’s employment attorneys, including Tammy Roe (troe@mpba.com) or Sara Campbell (scampbell@mpba.com) if you have questions about the flexible I-9 procedures. 

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