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By Immigration Group

This article was prepared with the assistance of American Immigration Lawyers Association.

Employers are increasingly requiring employees to work from home to accomplish necessary social distancing to limit the spread of the virus. Throughout this time, it is important for employers to be mindful of the continued employment verification requirements that have not been relaxed by the federal government; as such, employers must consider options for compliance during these challenging times. Currently the DOL webpage states, “All requirements for Form I-9, Employment Eligibility Verification, completion and E-Verify remain in place.”

Below are FAQs created with the assistance of the American Immigration Lawyers Association (AILA) to guide employers further in this matter:

Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

No. As of March 24, the mandate to complete a Form I-9 (and E-Verify if applicable) has not been suspended. Thus (1) all new hires must complete Section 1 of the Form I-9 on or before the first date of employment for pay, (2) the employer must complete Section 2 of the Form I-9 after physically reviewing original documents, and (3) the employer must complete Section 3 of the Form I-9 (or otherwise appropriately update the Form I-9) when re-verification is necessary.

What are viable options for completing Form I-9 in remote work scenarios?

Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire with the Form I-9 and Form I-9 instructions to complete Section 1 on or before the date of hire. Despite the challenges of remote employment, the employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment). The agent must review original documents while in the physical presence of the person presenting them.

One strategy for compliance is to authorize an agent to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. Please note that in the Form I-9 instructions, an agent is referred to as an “authorized representative”.

The agent records the document information on the I-9 and signs her name as “agent” for the employer, dating the form and filling in all form fields as appropriate. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. Many employers will designate someone to be on the phone or present via webinar to observe the Form I-9 process and confirm that the agent is acting appropriately. Because the process of verifying employment eligibility must occur in-person, these instructions should include current CDC guidance relating to reduction of the risk of virus transmission. Because the agent is acting on the employer’s behalf, any mistakes made by the agent will be attributed to the employer. The Form I-9 and instructions are available here.

In order to comply with social distancing recommendations, is it okay to use a family member already in the household as a third party?

In cases of self-isolation and/or quarantine, the only person available to act as agent may be a family member or health care provider. While it is lawful for these people to act as an agent of the employer, special care should be taken to assure that the Form I-9 has been completed correctly and completely.

Employers should consider whether it is preferable to have a family member serve as the employer’s agent or to instead wait to complete Section 2 of the form until the employee is in the office and able to meet with the employer in-person to complete the form. While it is obviously not ideal to have late completed forms, it is also not ideal to have a family member complete Section 2, as the family member may be less reliable than another third party agent, such as a Notary Public, in terms of properly completing the Form and verifying that the documents presented reasonably appear to be genuine and relate to the employee.

In any event, when an employer uses an agent to complete Section 2, the employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

If I cannot find anyone to verify a remotely hired employee, should I verify the documents through Skype or Zoom or some other video communication?

No. Immigration and Customs Enforcement Homeland Security Investigations (ICE HSI), the division of ICE charged with worksite compliance enforcement, has advised that the law requiring physical inspection of documents for I-9 purposes is still in effect.

AILA has asked DHS to exercise flexibility in enforcing this provision, and we will continue to monitor this closely for any additional guidance.

If the employer normally uses an electronic I-9 system, how should remote I-9s be handled?

First, it is important to remember that the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents. A system that fails to confirm physical document inspection may be deficient.

An employer should then consider its options. An employer that uses an electronic system may elect to create paper Forms I-9 paper if the circumstances warrant. For example, an employer may decide to create timely forms using an agent as described above, but the process would need to be all or in part paper-based because the employee and/or agent may be unable to access the electronic system if working from home.

An employer that creates a paper I-9 but otherwise uses an electronic system should maintain that paper I-9 record and flag its existence for future retrieval. If the employer wants to maintain the I-9 electronically going forward, it must comply with the applicable regulations for electronic I-9 retention. ICE HSI confirmed this during AILA’s Spring 2020 CLE Conference in Washington, D.C.

What should employers include in the recommended file memo for forms created in this period?

Per 8 CFR §274a.2(b)(2), the Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year (three years from the date of hire or one year from the date of termination, whichever is later). The biggest challenge for employers may be building the institutional memory to explain why some Form I-9s were completed late or did not have copies of documents attached in the context of a future investigation. It is critical that employers write explanatory notes in Section 2.

Employers should create and attach a file memo to any Form I-9, print or electronic, that were created during this period that explains the circumstances for creation of the form that resulted in untimely and/or practices that are outside of an employer’s normal Form I-9 creation and retention protocol. This memo should articulate and confirm the employer’s commitment to compliance with the employment verification requirements under the Immigration Reform and Control Act, describe the situation (attaching government advisories or other third-party documents such as, for example, the 3/13/20 Presidential Proclamation of National Emergency), who was affected, what steps were taken and where relevant documentation can be found.

In response to whether ICE will apply any leniency in the context of I-9 creation relating COVID-19, AILA has confirmed that it would consider the totality of the circumstances if inspecting Form I-9s created during this period in a future audit. During the November 2019 liaison meeting with ICE and DOJ Immigration and Employee Rights Division, ICE further confirmed that in any emergency situation, employers should prepare a memorandum in emergency situations to reflect the circumstances so that it can evaluate the circumstances in the event of an inspection or other investigation.

Does suspension of employer operations impact the employment verification requirements?

Yes, if a business is closed, then the Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes. Again, the employer should note this on the Form I-9 and ideally in an attached memo if it would otherwise appear that the form was not timely completed.

What if employers normally keep copies of Section 2 and 3 documents?

If an employer uses an agent to complete the Form I-9 remotely, the best practice would be for the person acting as the employer’s agent to make the copies at the first practical opportunity and deliver them to the employer. Another possible solution would be for the employer to copy the documents when the employee can bring them to the office. This practice has potential pitfalls, however. The employer will need to confirm that the documents presented are the same as those used for Form I-9 completion, which may prove difficult. Moreover, the employee may object to presenting documents again.

How can employers ensure that they provide clear communication throughout this outbreak?

Employers and employees are dealing with many difficult issues during this extraordinary time. A file memo helps create a record for future possible enforcement action. Employers should also clearly communicate to employees the steps it is taking in response to the pandemic and any related changes in procedures. This will help to mitigate risk of any discrimination related claims or enforcement. As long as employers are taking actions that are based on valid business and compliance related factors (such asking for Form I-9 documents again to make copies if the documents were initially presented to an agent) and not unlawful ones (such as national origin or citizenship), they are unlikely to run afoul of the anti-discrimination provisions of the INA that apply to the hiring process per 9 USC §1324b.

As always, the employer must take care to not prescribe which document(s) should be presented by the employee to avoid violation of the anti-discrimination provisions found in 8 CFR §274b. The employee must choose which documents to present for verification or re-verification purposes. Employers should always provide a copy of the List of Acceptable Documents attached to the Form I-9 and should continue to do so during this period.

Care should also be taken in how the Form I-9 (and document copies if applicable) completed by an agent are stored and transmitted to the employer. Most Form I-9s contain personally identifiable information (PII). As such, disclosure to persons other than the employer and government agencies entitled to view them could result in violation of privacy laws.

Employers should remember that they must use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020. The new and most recent version is very similar, and the need to start using the new version could be easily overlooked during this chaotic period.

Lastly, employers should prioritize taking actions it deems in employees’ best interest in these challenging times. Form I-9 compliance will not allow for a “one size fits all.” Employers should create an action plan that balances the competing factors and documents, so it is clear any actions were taken out of both caution and compliance during this global pandemic.

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