On March 20, 2020, due to the urge for employers to practice social distancing in regards to COVID-19, the Department of Homeland Security (DHS) announced it will exercise discretion to defer the physical presence requirements associated with Form I-9.
Employers who are exercising physical proximity restrictions in regards to COVID-19, whether by choice or mandated by public officials, will not be required to review the employee’s identity and employment authorization documents in-person during the pandemic. Note: This exception only applies to employers and workplaces that are operating remotely. If employees are physically present at a work location, these exceptions do not apply.
Additionally, employers must still inspect Form I-9 Section 2 identification documents remotely. DHS specifies remote verification includes but is not limited to video, fax, email, etc. Moreover, employers must complete this inspection and retain copies of the documents within three business days.
Employers implementing remote Form I-9 Verification should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field as soon as physical inspection takes place after normal business operations resume. Additionally, once the documents have been physically inspected, employers should write that there were “documents physically examined on (date of inspection)” in Section 2 Additional Information field, or Section 3 if applicable, on Form I-9.
It is important to note that physical inspection must be implemented by employers by May 19, 2020 or within 3 business days after the termination of the COVID-19 National Emergency, whichever comes first. Employers who implement remote Form I-9 Verification must provide written documentation of their remote or telework policy for each employee. DHS notes this burden rests solely on employers.
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