The Department of Homeland Security (DHS) announced that it would once again provide relief to employers operating remotely due to COVID-19 precautions by extending the Form I-9 flexibilities until August 31, 2021.

The current extension applies to employees working exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical in-person inspection requirements associated with Form I-9 until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Prior to April 1, 2021, the physical presence flexibilities did not apply if there were any employees physically present on-site.

How It Works

Employers who are operating remotely due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must still inspect the Section 2 documents remotely over video link, fax, email, etc. and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2.  If reverification is required, Section 3 must be completed before the employee’s work authorization expires.

It is important to remember that the I-9 flexibilities allow employers operating remotely the option to postpone the physical presence inspection requirements. This means that after employers resume normal operations at their business, all employees who were on-boarded or re-verified using the remote verification option, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9. If the employer is later subject to an I-9 audit, the “in-person completed date” would be used as a starting point for these employees only. 

The following recommendations have been provided by DHS regarding how to notate Form I-9 when remotely inspecting employment authorization and identity documents, and how to perform the required physical inspection once normal business operations resume:

Completing Section 2 when inspecting documents remotely 

• Employers should enter “Remote inspection completed on XX/XX/XXXX” in the Section 2 Additional Information box. 

Performing physical in-person inspection once normal operations resume 

• If the person who performed the remote inspection also performs the physical inspection, the individual should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information box on the Form I-9. Once the documents have been physically inspected, the employer should add in the Section 2 Additional Information box “documents physically examined” with the date of physical inspection along with their initials. 
• If the physical inspection is performed by an individual who did not perform the remote inspection, the person who performs the physical inspection should indicate the date they examined the documents as well as their full name and title in the Section 2 Additional Information box. Note that employers in this situation also have the option to complete a new Section 2 of the form I-9 and attach it to the previous form I-9 used for remote inspection.

Notating remote and physical inspection for reverification

• Employers should make required notations for remote and subsequent physical inspections of reverifications in the Additional Information box in Section 2 as described above.

For examples, see: https://www.uscis.gov/i-9-central/form-i-9-examples-related-to-temporary-covid-19-policies

As you can imagine, employers who have been performing I-9 remote inspections may be burdened by the physical presence inspection requirement once normal business operations resume. This is especially true if DHS does not allow any leniency on the 3-day requirement for physical presence inspection once the flexibility ends.

Authorized Representative Option: 

One option employers have moving forward is to designate or contract with someone such as a personnel officer, foreman, agent, or anyone else acting on the company’s behalf, including a notary public, to complete Section 2 or 3 in-person. Note though that anyone else who completes Form I-9 on your behalf must carry out full Form I-9 responsibilities. Further, the company is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf. Therefore, if you decide to go this route, it is important to have detailed instructions for both the employee and authorized representative to ensure full I-9 compliance.  

Employers inspecting documents remotely pursuant to the Form I-9 COVID-19 flexibilities or who are considering the authorized representative option should seek advice from an experienced attorney to ensure I-9 compliance.

Krystal Alanis

[email protected]