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Department of Homeland Security Lessens Form I-9 Requirements

Due to COVID-19 and the precautions and procedures being implemented by employers throughout the United States, the U.S. Department of Homeland Security (“Department”) announced that it will exercise discretion to defer the requirement that employers review Employment Eligibility Verification, Form I-9 with their employees in-person.

The deferment policy is in effect for a period of 60 days from the date of the Department’s notice (thus, effective until May 19) or within three business days after the termination of the national emergency, whichever occurs first.

The deferment only applies to workplaces and employers operating remotely due to precautions taken out of concerns for COVID-19. If there are employees physically present at a work location, no exceptions are being implemented at this time 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, the Department will evaluate this on a case-by-case basis. The policy consists of the following changes:

“Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence,” the Department stated. “However, employers must inspect the Section 2 documents remotely (e.g., over 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.”

Should employers choose to defer the physical inspection of Section 2, the employers are instructed to enter “COVID-19” in the “Additional Information” field as the reason for the physical inspection delay, once physical inspection takes place after normal operations resume.

When the documents have been physically inspected, the employer should add “documents physically examined” along with the date of inspection to the Section 2 “Additional Information” field on Form I-9, or to section 3 as appropriate.

Employers who take advantage of the deferment must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers. When operations return to normal, employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of their identity and employment eligibility documentation. 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. Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

Logan Stevens




This advisory has been prepared by Carson LLP for informational purposes only and does not constitute legal advice. Copyright 2020, Carson LLP, 301 W. Jefferson Blvd. STE 200, Fort Wayne, Indiana, 46802. All rights reserved. Date of Advisory 3/20/2020.