The fluidity of federal, state and local government responses to the coronavirus disease 2019 (COVID-19) pandemic has triggered a dramatic shift in how businesses must operate in the near term. The last few weeks have seen an unprecedented – and in many cases government-ordered – mass migration to a work-from-home-model, where possible and/or as mandated by the employer.
Such abrupt changes have created significant challenges to employers’ efforts to comply with employment-related laws and regulations. For example, the Immigration Reform and Control Act of 1986 requires employers to complete a Form I-9 within 3 business days of a new employee’s first day of work for pay. But how can employers satisfy the law’s in-person verification requirement in a mandatory work-from-home environment?
On Friday, March 20, 2020, the U.S. Department of Homeland Security (DHS) issued guidance that loosened the strict “in-person” requirements imposed upon employers. Specifically, DHS will now permit employers to virtually inspect Form I-9 Section 2 Identify and Work Authorization documents in connection with completing a Form I-9.
Below we identify and answer common questions to assist employers in implementing new I-9 protocols based on DHS guidance.
Key questions and answers related to the new DHS guidance
For how long will this guidance remain in effect?
The guidance provides that employers may follow the detailed provisions until the earlier of (i) May 19, 2021, or (ii) 3 business days after the termination of the current state of National Emergency.
What does the guidance change with regard to completion of a Form I-9?
In the course of completing Section 2 of Form I-9, employers with employees taking physical proximity precautions due to COVID-19 are no longer required to review an employee’s identity and employment authorization documents in the employee’s physical presence. Instead, employers may obtain and inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) within three business days of the date of hire for purposes of completing Section 2. Additionally, if an employer’s normal practice is to retain Section 2 documents, then such employer is reminded to retain the electronically-provided documents.
Does the authorization to virtually inspect the Section 2 documents completely relieve an employer of the obligation to physically inspect such documents at some later date?
No. Once normal operations resume, an employer is required to perform a physical inspection of the Section 2 documents that previously were inspected virtually. In connection with such physical inspection, employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” field on the I-9. 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, as appropriate.
Does the guidance require an employer to make any special notes on the Form I-9 in connection with the remote inspection?
The guidance does not appear to require any special notation on the Form I-9 at the time of the remote inspection. However, given the need to provide the above-described note in connection with a subsequent in-person inspection, employers should consider tracking all I-9s that were being completed via remote inspection, for example by segregating the form in a separate binder so that it can later be identified as requiring an in-person verification. Because of the current lack of express guidance on this issue, it will be a company-specific decision regarding whether and how to note the fact that an I-9 was completed. Likewise, for Form I-9s completed and maintained electronically, employers are encouraged to develop a protocol so that the proper in-person inspection follow-up can be completed as required.
Does the DHS guidance apply to all US employers?
In its current form, the DHS guidance specifies that it applies only to “employers and workplaces that are operating remotely.”
Does the guidance modify, or create new, obligations with regard to a company’s participation in E-verify?
DHS instructs that employers remain obligated to create an E-Verify case for each new hire within three business days from the employee’s date of hire, which is the hire date reflected in the corresponding Form I-9. However, if there is a delay in creating a case due to COVID-19, DHS instructs employers to select “Other” from the drop-down list and enter “COVID-19” as the reason for the delay.
My company received a Notice of Inspection (NOI) in connection with my Form I-9s during the month of March 2020. Does the guidance provide an extension of the stated deadline to respond to the NOI?
Yes. Effective March 19, 2020, any employers who were served NOIs by DHS during the month of March 2020, and have not already responded thereto, will be granted an automatic extension for 60 days from the effective date. At the end of the 60-day extension period, DHS will determine if an additional extension will be granted.
If you have any questions regarding these new benefits and their implications, please contact any member of the DLA Piper Employment group or your DLA Piper relationship attorney.