I-9 COMPLIANCE CONSIDERATIONS FOR EMPLOYERS PREPARING TO RETURN TO “NORMAL OPERATIONS”

These accommodations included deferral of the physical presence requirements associated with the review of documents presented for Employment Eligibility Verification (Form I-9). Normally, an employer is required to inspect the original documents provided by the employee to verify identity and employment authorization in the employee’s physical presence. The accommodation provided by DHS beginning March 20, 2020 and currently extended through March 31, 2021, allows employers to initially inspect documents remotely via video link, or copies sent via mail, fax, e-mail or other electronic means. Employers must retain copies of the documents reviewed. Employers who availed themselves of this accommodation must subsequently review the original documents in the employee’s physical presence within three business days following the end of the national emergency, or the date employees return to the work location, whichever happens first.

It is important to note that this accommodation only applies to employers and workplaces operating 100% remotely. This accommodation is not permitted for work locations were there are employees that are physically present. Immigration and Customs Enforcement (ICE) has indicated that some exceptions may apply for employers who are not operating 100% remotely for new employees who are subject to quarantine prior to being physically present on the employers’ premises. It is important to note that this accommodation does not extend the timing requirements to complete the Form I-9. Section 1 of the Form I-9 must still be completed by a new employee on, or before the day they begin work and documents must initially be reviewed within three business days following the date the employee begins work.

As the prospect of a return to normalcy begins to appear on the horizon due to decreasing cases and increasing vaccinations for COVID-19, employers who initially reviewed copies of documents must be sure they have taken steps to track I-9 for which copies were reviewed and perform the physical review of documents within three business days of the date employers start bringing employees back to their work locations.  DHS has provided several examples of how employers should notate the initial inspection of copies and the final review of originals in the employee’s physical presence.

As many state and federal government offices closed for a time during the national emergency, many states made their own accommodations for List B documents, such as driver’s licenses, set to expire on or after March 1, 2020. Every state made their own rules, therefore expired List B documents that qualify for the state’s extension should be substantiated with a copy of the announcement detailing the accommodation from the issuing authority.

Some states, however, did not make accommodations, or accommodations expired prior to the end of the national emergency. In such cases, DHS has provided that identity documents set to expire on or after March 1, 2020 presented as an acceptable List B document for the Form I-9 may be treated as a valid receipt for an acceptable document for Form I-9 purposes. In such cases, the expired document is considered valid for 90 calendar days from the date the employee begins work.  The employee must present the unexpired original document, or alternative list A or List B and list C document, within this 90-day period. Click here for instructions on how to update the Form I-9 when a valid receipt is accepted.

It is not possible for the temporary policies issued by States and DHS to contemplate every possible scenario that may occur during remote on-boarding of employees. Employers are therefore encouraged to discuss I-9 compliance with experienced immigration counsel as they begin to return employees to their work locations.