I-9 Document Flexibility: Steps for Remote Onboarding and Document Verification

Employers implementing physical proximity precautions or subject to stay-at-home orders due to COVID-19 now may review an employee’s identity and employment authorization documents remotely by videolink, webcam, email, or similar method, and postpone review in the employee’s physical presence.

This is a change from the regulatory requirement for in-person review of original documents for compliance and completion of the Form I-9 Employment Eligibility Verification. This provision only applies to employers and workplaces operating remotely due to the COVID-19 outbreak National Emergency.

Under this temporary relaxing of requirements, the employer must retain copies of the documents with the I-9, which is normally optional (except for employers enrolled in E-Verify). On March 20, 2020 the Department of Homeland Security (DHS) announced this alternative, which permits employers to adopt this procedure for 60 days (that is, until May 19, 2020) or until three business days after the termination of the COVID-19 National Emergency, whichever comes first.

DHS explained that this option is only deferring, not excusing, the physical presence document review requirement. Employers must review the original documents in the employee’s presence after normal operations resume.

Steps for Remote I-9 Verification

Here are the steps for remote I-9 verification employers should take:

• Employer must provide the I-9 form and instructions to the employee and must use the new version of Form I-9 no later than Friday, May 1, 2020.¹ Employers should use a method such as the following to provide the I-9 to the employee:
• Email;
• Postal mail; or
• Web link to the online I-9 form.
• Employee must possess original identity and employment authorization documentation to satisfy the List A or List B and C requirements.
• Employee must complete and sign Section 1 of the I-9 and send it to the employer in hard copy via postal mail or through electronic means.
• Employee must show the employer the documentation through a method such as:
• Webcam viewing through services such as Webex, Zoom, or FaceTime;
• Sending photos of documents by email or text message; or
• Emailing a PDF scan of documents.
• Employer representative who reviews the documents must complete Section 2 of the I-9 for new hires, and Section 3 for reverification and rehires.
• Employer representative should enter “COVID-19” in the open text box in Section 2 as the reason for the physical inspection delay.
• Employer must develop written documentation of their remote onboarding and/or telework policy and should revise the company handbook to incorporate the information about the policy.
• Within three business days after normal operations resume, all employees who were onboarded using the remote verification process must report to their employer for in person verification of the documentation.
• After physical inspection of the original documents in the presence of the employee, the employer should revise the I-9 form to add “documents physically examined” with the date of inspection in the open text box on page 2.

Alternatively, an employer may designate any person to act as an authorized representative to review the original documents on behalf of the employee and to complete Section 2. See our prior guidance on I-9 completion by an agent.

E-Verify participating employers still must create E-Verify cases for new hires within three business days from the date of hire. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.

Employers also must remember not to discriminate against or tolerate discrimination against any employee who may be exhibiting symptoms of a communicable disease/illness.

DWT will continue to provide up-to-date insights and remote access events regarding COVID-19 concerns. For the most recent developments visit www.dwt.com/COVID-19.

To attend one of our free webinars covering a broad range of COVID-19 topics, please visit our Events page.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.