Question of the Day: Form I-9 Physical Presence Requirements Update

June 16, 2020

By Bridget R. Penick

Question

Must employers begin physically inspecting I-9 documents for workplaces continuing to operate remotely due to COVID-19 concerns, even if states are permitting workplaces to reopen?

Answer

No.

As previously reported on Fredrikson’s USCIS COVID-19 Updates and in our May 5 and May 18 Questions of the Day, on March 20, USCIS announced the temporary deferral of the normal physical presence requirements affiliated with form I-9 for workplaces operating remotely through May 19, 2020.

On May 14, U.S. Immigration and Customs Enforcement (ICE) announced a 30-day extension of the flexibilities related to Form I-9 compliance to continued precaution related to COVID-19. On the eve of that expiration date, ICE has again extended Form I-9 requirement flexibility for an additional 30 days, through July 19.

As a reminder, the requirements are temporarily relaxed as follows only for workplaces that continue to operate 100 percent remotely:

  • Employers with employees taking physical proximity precautions due to COVID-19 are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence.
  • Employers must inspect the Section 2 documents remotely (e.g., video link, fax or email, etc.) and obtain, inspect and retain copies of the documents, within three business days for purposes of completing Section 2.
  • Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume.
  • Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.
  • 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.
  • Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee.
  • If there are employees physically present at a work location, no exceptions were implemented for in-person verification of identity and employment eligibility documentation for Form I-9. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

If you have questions regarding these obligations or others related to COVID-19, contact your Fredrikson & Byron Employment & Labor or Immigration Attorney.


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