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DHS announces Rare I-9 Flexibility for Employers that are Operating Remotely as a Result of COVID-19

Today, the Department of Homeland Security (DHS) announced that they are implementing a special Form I-9 exception for employers who have implemented a “stay at home” work policy as a result of the novel coronavirus (COVID-19) outbreak. Here is what you need to know:

Summary

  • Employers and workplaces that are operating remotely will not be required to review identity and employment eligibility documentation in-person and can instead inspect them remotely within 3 days of the employee’s start date
  • DHS mentions using video conferencing, fax, or email to conduct the remote verification
  • Employer must obtain, inspect, and retain copies of the supporting documents, within 3 business days
  • Employer must also provide written documentation of their remote onboarding and telework policy for each employee
  • If there are employees physically present at a work location, employers cannot avail themselves of this exception; 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
  • This special allowance will last for 60 days from today or within 3 business days after the termination of the National Emergency, whichever comes first
  • Once a business resumes normal operations, the new hire has to report to their employer within 3 days for in-person verification of the documents
  • After in-person verification has occurred, the employer should enter “COVID-19” in the Section 2 additional information box or Section 3 (if the remote examination was for reverification purposes). They should also annotate “documents physically examined” and the date.
  • Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2
  • Effective March 19, 2020, any employers who were served NOIs by DHS during the month of March 2020 and have not already responded will be granted an automatic extension for 60 days from the effective date (DHS will later determine if an additional extension will be granted).

Analysis

DHS should be applauded for making this rare exception to their Form I-9 rules, which strictly require an employer to physically examine the identity and employment authorization documents in-person with the new hire employee. Last week, we posted an article which describes the challenges and options for employers that need to onboard new hire employees during these trying times.

Based on today’s new guidance, employers needing to hire and onboard workers during the coronavirus outbreak essentially have two options:

(1) Use an authorized representative to conduct an in-person verification NOW, using the methods and strategies outlined in our prior article

(2) Conduct a “virtual” verification NOW and create a procedure/policy for conducting an in-person verification at a later time

We’ll explore both options, listing the pros and cons.

In-Person Verification Now 

In today’s announcement, DHS reiterated their longstanding policy that employers may designate any person as an authorized representative so long as that person meets in-person with the employee, reviews their original documents, and completes and signs Section 2. Employers are also responsible (and liable) for any errors, omissions, or issues during the Form I-9 completion.

As we discussed last week, employers often struggle with determining who can (or should) act as an authorized representative for I-9 purposes. As we all know, the Form I-9 has some very unique rules and requirements, and so whoever you choose must have a good understanding of how to review the documents and complete Section 2 of the Form I-9.

Fortunately, this remote I-9 conundrum is not new, and there are several effective strategies for ensuring that your remote I-9 is completed properly. The best method, used by many large employers with high volumes of remote workers, is to utilize an electronic I-9 system that guides the remote agent through the verification process, ensures that all required fields are completed, and facilitates remote review at a later time.

Virtual Verification Now, In-Person Verification Later

Employers may also avail themselves of DHS’ new “virtual verification” procedure if they are operating in a fully “work at home” environment. Employers opening door #2 have a lot more flexibility, but they also have a lot more work to do in setting up their policies and procedures. Here are some important considerations to keep in mind:

Determining whether the employer qualifies

At the onset, you will need to figure out whether you can take advantage of this special rule. DHS notes that:

This provision only applies to employers and workplaces that are operating remotely. 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, Employment Eligibility Verification. 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.

Some employers (like those in NY and CA) may have a portion of their workforce at a physical location. Or the employer may have an “optional” work from home policy, which means that some employees may be present, and others may not. As of this writing, it’s not clear how closely DHS will examine these types of circumstances.

Choosing the remote verification method

In their announcement, DHS notes that employers can use video, fax, or email to conduct the verification. While it’s nice to have so many options, employers should strongly evaluate their remote verification method. Most email communication is NOT secure, and employers could face even bigger worries and trouble if they start asking employees to send documents which have loads of personally identifiable information on them (such as SS cards, passports, etc.) Faxes can also be unsecure, but an even bigger problem is that most individuals won’t have access to a fax machine (or perhaps even know what a fax is).

Video conferencing is likely the best choice amongst the options mentioned by DHS, especially when you consider that so many organizations are using video platforms to conduct work remotely during the coronavirus outbreak. Employers will, however, need to schedule a time to meet “virtually” with their new hire employee and also ensure that the employee properly completes section 1 of the Form I-9.

Once again, employers should strongly consider using an electronic I-9 platform which enables remote completion of Section 1, and customizable instructions and help text for guiding the employee through the process – including, perhaps, a secure link to video conferencing meeting room.

Flagging the I-9 for Follow-Up

Last but not least, employers will also need to implement a policy for following-up on any I-9s completed using the virtual verification method. According to the DHS guidance mentioned above, employers must conduct an in-person verification within 3 days after the business resumes normal operations. Once completed, the employer will then need to annotate the I-9 (in either Section 2 or 3 as applicable) and write COVID-19 along with the date the in-person verification occurred.

There are three essential components here:

(1) Method to flag the I-9 for follow-up: this may involve using a spreadsheet, or for electronic I-9 users, a custom field that can be queried and reported on later

(2) Instructions for updating the I-9:  organizations should clearly document the steps that should be taken for conducting the in-person verification, including notifying the employee of the need to return for in-person verification, reviewing the documents and annotating the I-9, and conducting a final review before considering the I-9 “done”

(3) Training for document verifiers: once employers resume normal operations, they will need to train their HR staff on how to annotate the I-9 according to the DHS rules

Which Option is Right for Your Organization?

Employers with remote operations during the COVID-19 outbreak will ultimately need to decide whether to perform an in-person verification now using an authorized agent or conduct a virtual verification, followed by an in-person review later on. In making this decision, it may be helpful to look at the relative effort of each approach.

In this author’s opinion, performing an in-person verification now involves the least amount of work and uncertainty as the I-9 can be a “one and done” type of operation. A new hire can ask a nearby friend or colleague to complete the verification in-person according to the employer’s instructions. This option works best when using a well designed electronic I-9 system that guides the inexperienced verifier through the process and offers immediate reviewability for the HR person.

Employers without an electronic I-9 system or those that simply have concerns with using a third-party may wish to use the virtual verification model, but they have to be prepared to (a) make sure this option is available for them (i.e., do they qualify as truly remote) and (b) conduct all of the necessary follow-up actions described above.

How is E-Verify Impacted?

The USCIS has indicated that employers must continue to submit employees to E-Verify within the usual 3-days after start timeframe. Therefore, employers using the new virtual verification method will need to make sure they have copies of the documents that will trigger a photo match: the US passport, passport card, I-551 green card, or the I-766 Employment Authorization Document (EAD).

In addition, in light of the closure of all Social Security offices (effective Tuesday March 17), E-Verify has announced that E-Verify Employers should continue to follow the E-Verify TNC process. If the employee is unable to visit the SSA office after case referral, employers are instructed to set the case aside. We expect additional information with regard to SSA TNCs to follow in the coming hours.

Additional Guidance and Tips

On Monday, March 23, LawLogix will be hosting a special I-9 webinar with SHRM to discuss this new guidance and best practices for employers. We’ll also answer questions from attendees and provide the latest intel on tricky I-9 and E-Verify issues that are arising as a result of COVID-19. You can register for this late-breaking webinar here.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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