On March 19, 2020, DHS issued announced a new policy which deferred the requirement for employers to review original documents presented by employees to prove their identity and authorization to work in the U.S. to satisfy the Form I-9 in the employee’s physical presence. This new policy will permit qualifying employers to review documents virtually or accept copies of documents. It does not, however, provide an extension of the requirements to complete the review of documents (virtually or physically) by the 3rd business day following date the employee begins work for pay. The requirement to review the original documents in the employee’s physical presence was deferred until 3 days after “normal operations resume”.
This policy is intended to apply to employers with employees taking physical proximity precautions due to COVID-19. If there are employees “physically present at a work location”, the exception does not apply. However, if employees are subject to quarantine, or at-risk, DHS has indicated that they will review on a case-by-case basis. DHS has not yet defined what qualifies as a “work location”, nor provided any guidance for whether the exception would apply only to (Pre-COVID-19) worksites of an employer that are 100% remote.
USCIS has also provided examples of how employers should notate the application of this exception to the Form I-9 as well as the subsequent physical inspection. This exception was set to expire on December 31, 2020 and was recently extended through January 31, 2021 as the national emergency continues.
In recognition of Employment Authorization document (“EAD”) production delays due to COVID-19, DHS also extended their policy allowing employees to use their I-797 Approval Notice with a date on or after December 1, 2019 though August 20, 2020 as a List C document evidencing work authorization through February 1, 2021.