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Form I-9 Conundrum: Is your business operating remotely during COVID-19?

It’s been almost two weeks since DHS announced their new “flexible” Form I-9 option, which enables employers to conduct a remote verification of a new hire’s identity and work authorization documents, followed by an in-person verification at a later time. This unprecedented relaxation of the rules took many businesses by surprise, especially coming from an organization (ICE) that has prided itself on strict adherence to the letter of the law.

But drastic times call for drastic measures, and employers with hiring needs now find themselves trying to make sense of this new option. In particular, we’ve received a number of inquiries (from employers of all size) regarding what it means to “operate remotely” for purposes of qualifying for this new flexible verification process.

While DHS has not yet issued any further guidance (or FAQs) on this topic, we’ve spent the last week chatting with attorneys and compliance managers regarding how the agency will likely interpret and enforce this virtual verification policy.

What follows below is our analysis (based on information available as of this writing) on this critical and important question. As is always the case, we highly recommend discussing I-9 policy with your own internal or external counsel, especially for these “gray” areas of the law.

Question: can we use the new “virtual verification” option if only a portion of our workforce is working remotely due to COVID-19? For example, we have certain job roles for whom it is essential to work onsite at our facilities and others where work-at-home is required.

To answer this question, we need to first look at the DHS “flexible” I-9 announcement, which was published on Friday March 20, 2020. This memo includes the following requirement with respect to the relaxed deferred verification option:

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.

In order to make sense of this language, let’s break it down into sections. DHS first notes that the virtual verification option is only available to employers and workplaces that are operating remotely. The mention of both employers and workplaces (rather than just “employers” alone) is important, as it implies that DHS will be looking specifically at the I-9 practices for a particular workplace or location. The next sentence confirms this as DHS specifically notes that if there are employees physically present at a work location, the exception will not be allowed.

Different Locations with Different Policies

But what about organizations that have some workplaces open (for essential services), while other locations are closed due to the pandemic? Based on the above, the DHS memo would arguably permit an employer to conduct virtual verifications for new hires at the closed location, since that specific “workplace” is operating remotely.

Employees Onsite with Virtual Verification?

Let’s look at a different scenario. What if the employer has people working on-site, but nevertheless wants to utilize the new virtual verification option for new hires who will work at that location in order to maintain optimal social distancing protocols? For example, health care facilities (in particular) are trying to limit close physical contact wherever possible, especially for “back office” operations that do not not involve life-saving care.

At first glance, the DHS memo would seem to preclude this possibility, especially if you read the “no exceptions” language above in the strictest light. However, the rest of that paragraph provides some additional flexibility as DHS notes that 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.

Once again, let’s look at this section line by line. Despite the “no exceptions” language above, DHS appears to be providing an allowance for employers with new hires OR existing employees that are subject to COVID-19 quarantine or lockdown protocols. DHS does not define what it means by quarantine or lockdown protocols, so employers could reasonably interpret this as either a state-wide stay-at-home order (of which there are many) or even the employer’s own “protocol” that it has implemented for the safety and well-being of employees and customers.

It’s also telling that DHS included not only new hires, but existing employees as well. An employer with on-site employees may thus have a good argument for using the virtual verification option if a new hire will be working remotely from the beginning. Similarly, an employer might take the position that virtual verification is appropriate since their “existing” HR employees (who would normally complete Section 2) are working remotely, due to a lockdown protocol.

Gotta Have Good Faith

Last but not least, let’s take a moment to talk about the final section of that sentence – the notion that DHS will evaluate on a “case-by-case basis.” DHS likely included this language because they recognized that there will be situations and scenarios which will not neatly fit into their ruleset. At the same time, the agency had to put some boundaries in place to prevent potential misuse of this historically “relaxed” position.

Why does this even matter?

If you’ve made it this far into the blog, you may be wondering why any of this even matters. Let’s say an employer chooses to do virtual verification, and DHS disagrees with that decision based on their published guidelines. What would be the consequence?

From a strict compliance perspective, the employer would likely be charged with a so-called timeliness violation, for failure to review original documents in-person within 3 days after hire. Timeliness failures are considered “substantive” violations by the agency, which means employers can be fined without an opportunity to correct. And as we’ve discussed in prior blogs, substantive violations can add up quickly, given the yearly inflationary increase of I-9 fines and penalties.

But even on this point, I think employers need to put things into perspective. We’re living in extraordinary times right now, and many organizations are desperately fighting to keep their employees and customers safe. An employer who chooses in good faith to use a virtual verification I-9 process based on their understanding of the requirements should not be penalized during these trying times. As long as they are maintaining documentation and keeping track of employees that need in-person follow-up, employers should be deemed to be in compliance with the verification requirements.

But Don’t Forget the Remote Agent Option!

As we discussed in our earlier blog, employers can avoid this thorny decision altogether by using an authorized representative (or “remote agent”) to conduct an in-person verification of a newly hired remote employee. Organizations have been using this method for years to verify employees who live (and work) far away from a company location.

Employers choosing this option can ask the employee to pick a nearby individual (perhaps a friend, neighbor, or even family member) and then walk them through the steps that need to occur. The remote agent option works best when paired with an electronic I-9 solution that guides the agent through the necessary steps and prevents mistakes or omissions.

The best part about the remote agent option (as compared with DHS’ new relaxed virtual path) is that it eliminates the additional in-person I-9 follow-up down the road, when employers will likely be occupied with more pressing business concerns.

Have a question on these remote I-9 options? Please make sure to check out the following additional I-9 resources:


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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