As more businesses are adapting to a remote-working operation, employers may be concerned about the Department of Homeland Security’s (“DHS”) requirement that employers verify an employee’s employment eligibility documents when completing the Form I-9. There is some relief.

As an employer, am I still required to inspect my employees’ Form I-9 documentation in person during the COVID-19 pandemic?

Not necessarily. DHS is temporarily allowing for remote inspection of Employment Eligibility Verification, or Form I-9 documents. This remote inspection exception is valid until the earlier of (i) May 19, 2020 or (ii) within three business days after the termination of the National Emergency.

These remote inspections of Form I-9 documents are available to employers who have employees taking social distancing and remote working precautions due to COVID-19. These precautions include situations such as shelter in place requirements, mandatory work from home orders, and site closures. Under these circumstances, the employer will not be required to review the employee’s identity and employment authorization documents in the physical presence of the employee.

Although, the employee does not need to be physically present, the employer must still inspect the documents remotely. Specifically, documents required to complete Section 2 of Form I-9. Employers must inspect these documents via video chat (i.e., FaceTime, Skype, Zoom), email, fax, or other method and retain copies of said documents within three (3) business days for the purposes of completing Section 2.

Remember, employers may designate an authorized representative to act on their behalf to complete Section 2 of Form I-9. However, the employer will be liable for any violations in connection with the form submission or the verification process, even if made by an authorized representative.

If the employees are in the workplace, can I remotely inspect their Form I-9 verification documents?

No. This exception does not apply to employees still present in the workplace.

What are the employer’s obligations in reporting under the remote inspection exception – now and after the pandemic ends?

Employers taking advantage of the remote inspection exception must provide written documentation of their remote onboarding and telework policy for each employee.

After normal operations resume, the employer must conduct an in-person examination of the necessary documents. At that time, the employer should enter “COVID-19” as the reason for a delay in physical inspection in Section 2 of Form I-9. Further, the employer should add “documents physically examined” with the date of the inspection to the additional information field of Section 2 or to Section 3 as appropriate.

You can read more about DHS’s accommodations in the Form I-9 process during this pandemic here.

By Lauren R. Myers, lmyers@dsda.com