EAC Update

On March 20, 2020, the Department of Homeland Security (DHS) announced flexibility in the requirements related to Form I-9 compliance for employers and workplaces operating remotely due to COVID-19 social distancing recommendations.  DHS announced that it will defer the physical presence or physical inspection requirements associated with the verification of List of Acceptable documents.

To take advantage of this deferment, employers must do all of the following:

• Inspect the Section 2 documents remotely (e.g., over video link, fax, or email); and
• Obtain, inspect and retain copies of the documents, within 3 business days for purposes of Completing Section 2; and
• Once normal operations resume, all employees who were on-boarded 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; and
• Once the physical inspection takes place after normal operations resume, the employer should enter “COVID-19” as the reason for the physical inspection delay in Section 2 Additional Information field; and
• Once the documents have been physically inspected, the employer should add “documents physically examined on [date]” to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

These provisions may be implemented by employers for a period of 60 days from March 20, 2020 or within 3 business days after the termination of the National Emergency, whichever comes first.

Employers should note that to take advantage of this deferment, employers must retain copies of the documents inspected remotely.  Typically, an employer is not required to keep a copy of the documents inspected, although it has the option of doing so.  Employers should consider providing notice of the requirement to report for in-person verification and employment eligibility verification to all employees whose documentation is verified remotely due to COVID-19.

This deferment applies only to employers and workplaces operating remotely. No exceptions apply if there are employees physically present at a work location. However, if newly hired employees or existing employees requiring reverification are subject to COVID-19 quarantine or lock-down protocols, DHS will evaluate this on a case-by-case basis.

In addition, employers who avail themselves of this deferment must provide written documentation of their remote verification and telework policy for each employee. DHS did not indicate how and when employers should provide such document. However, this burden will rest solely with the employer. As such, employers should make sure they have the necessary remote work policies.

Extension to Employers Served With a Notice of Inspection

DHS also announced that effective March 19, 2020, any employer who was served with a Notice of Inspection by DHS during March 2020 and has not responded, will be granted an automatic extension for 60 days from the effective date.  DHS will determine if an additional extension will be granted.  DHS indicated that employers are required to monitor the DHS and ICE websites for additional updates about when the extensions will be terminated and when normal operations will resume.

Please contact the authors, Susana P. Solano at (916) 923-1200 or Susan M. Steward at (562) 653-3200, or your employment law counsel for any questions regarding Form I-9.

©2020 Atkinson, Andelson, Loya, Ruud & Romo