We understand that even during the COVID-19 global pandemic and national emergency, employers are hiring new employees. Employers should be aware that Form I-9 Employment Eligibility Verification requirements, including the requirement that the employer review the employee’s I-9 documents in person, remain in effect. Although companies are increasingly recommending or requiring that employees work from home to accomplish necessary social distancing and help limit the spread of the virus, and various localities are under “shelter-in-place” orders, I-9 requirements have not been relaxed by the federal government and USCIS’s website currently states, “All requirements for Form I-9, Employment Eligibility Verification completion and E-Verify remain in place.”
Reviewing Documents for the Form I-9
Employers are still legally required to review original documents while in the physical presence of the person presenting them, then 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. Physical presence means physical presence. Skype, Zoom, and other forms of video communication do not satisfy the requirements.
Understandably, Form I-9 compliance during this time does not allow for a “one size fits all” solution. The normal process utilized at a company for employment verification may temporarily change as employees work remotely. One strategy for compliance is to authorize an “agent” or “authorized representative” to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. The agent records the document information on the I-9 and signs his or her name as “agent” for the employer, dating the form and filling in all form fields as appropriate.
Although authorized representatives are often unrelated third-parties, such as a Notary Public, an authorized representative may be “any person” that the employer designates to complete and sign the I-9 on its behalf. It is possible that in cases of self-isolation and/or quarantine, the only person available to act as an authorized representative may be a family member or health care provider. Although not ideal, it is lawful to allow a family member or health care provider to be an authorized representative.
Employer Responsibilities When Utilizing an Authorized Representative
Employers should be aware that any mistakes made by the authorized representative will be attributed to the employer because the agent is acting on the employer’s behalf. Therefore, employers should take action to minimize mistakes. The best practice is to send clear, written instructions to the authorized representative performing this service. 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 and include Form I-9 instructions, which are available at https://www.uscis.gov/i-9. An employer can also designate a person to be on the phone or present via video communication application to observe the Form I-9 process and confirm that the authorized representative is acting appropriately. Employers should review I-9s received from agents immediately and correct any mistakes as soon as possible.
Documenting Untimely Completion and/or Alternate Practices
Finally, employers should create and attach a file memo to any Form I-9, print or electronic, that was created during this period that explains the circumstances for creation of the from that resulted in untimely completion and/or practices that are outside of the employer’s normal Form I-9 protocol. Immigrations and Customs Enforcement Homeland Security Investigations (ICE HSI), the division of ICE that is responsible for worksite compliance enforcement, has advised that in any emergency situation, employers should prepare a memorandum to reflect the circumstances so that ICE HSI can evaluate the circumstances in the event of an inspection or other investigation. 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.
Contact Fraser Stryker for Assistance with Employment Verification Questions
We are here to help answer any questions or talk with you about any concerns you may have regarding employment verification during this time. Call our Immigration Law attorneys at 402-341-6000.
As a friendly reminder, employers must use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020.
Author: Kristin A. Crone
This article has been prepared for general information purposes and (1) does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. Always seek professional counsel prior to taking action.
Kristin A. Crone