I-9 Update: DHS Temporarily Permits Virtual Document Review

The Department of Homeland security has announced that they will temporarily defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA) for employers who have transitioned to a telework only arrangement for their workforce.

The physical presence requirement dictates that the person who views the orginal documents presented as evidence of identity and work authorization for the Form I-9 do so in the employee’s physical presence and the person who reviews this documentation must also be the person who signs the certification section on behalf of the employer in Section 2 of the Form.

Only employers who have implemented remote work for all of their staff willl be able to avail themselves of this exception. This exception will not apply for employers for whom there are any employees physically present at a work location.

The physical presence requirement is only deferred, not removed, for qualifying remote employers. Employers will still be required to perform a physical review of the presented documents. Employers reviewing copies of documents or via other remote applications should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field once physical inspection takes place after normal operations resume.

Employees have 3 days following the date that normal operations resume for the employer to present the original documents for physical review. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 if the originally presented work authorization has been updated since remotely reviewed.

Timing requirements for Form completion remain unchanged, therefore Section 1 must still be completed by the employee on or before their first day of work, and Section 2 document review (even if remote) must be completed by the employer (or their authorized representative).

This accomodation to permit “virtual” review of documentation will be in place for the earlier of 60 days or 3 days following the end of the National Emergency.

You can review the DHS announcement here:

Employers who have received an NOI in March 2020 as a result of an audit will be automatically granted a 60-day extension to the required response date.

Maggio Kattar is actively monitoring the ongoing developments in response to the COVID-19 pandemic and will supply any updates.