Even I-9s Affected by COVID-19 (If Operating Remotely), Plus a New FormThe newest edition of Form I-9 is officially here, and DHS has provided some guidance on how to inspect work authorization documents in a COVID-19 remote world.

The New Form

Last fall, U.S. Citizenship and Immigration Services (USCIS) issued a revised Form I-9, which has an edition date at the bottom that reads “10/21/19.” Since January 31, 2020, employers have been allowed to use either this 10/21/19 revised version or the prior version, which bears a “07/17/17” edition date. This, however, is about to change. Starting May 1, 2020, employers must use the 10/21/19 edition or risk fines for non-compliance.

New Guidance on Inspecting Documents Remotely

Meanwhile, because of the COVID-19 pandemic, the Department of Homeland Security (DHS) has issued some guidance that temporarily relaxes the Form I-9 document inspection requirements for employers who are operating remotely.

Under this temporary policy modification, if you have employees working remotely as a result of COVID-19, you are not initially required to inspect those employees’ work authorization documents in the employee’s physical presence as part of the Form I-9 process. Instead, you may inspect the documents remotely — for example, by video link, fax, or email — to complete the Form I-9 within the normal time frame. If you inspect the documents remotely, you must retain copies of the documents and enter “COVID-19” in the Additional Information field on the Form I-9. Then, once your normal operations resume, within three days you must physically inspect the employee’s original documents and make a note in the Additional Information field reflecting the date of that physical inspection, as well as who conducted it.

A few more important notes about this temporary change to the Form I-9 process:

  • This change does not apply to employees who are physically present at the employer’s work location. You must continue to physically inspect those employees’ documents in accordance with normal Form I-9 procedures.
  • You can use the temporary policy both to onboard new employees who will work remotely, as well as to re-verify the work authorization of existing employees working remotely.
  • This temporary modification will be in effect until May 19, 2020, or three days after the termination of the COVID-19 national emergency, whichever comes first. After that, unless the temporary policy is extended, all the normal Form I-9 rules will apply.

USCIS has issued a set of Questions and Answers, which provides some additional guidance about the temporary policy. If you wish to take advantage of these more flexible rules during the COVID-19 pandemic, you should review this guidance and keep an eye out for additional announcements from DHS.

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Photo of Keith Covington Keith Covington

Keith Covington practices labor and employment, immigration, and construction law in the firm’s Birmingham office. He counsels employers on a wide variety of topics, including labor relations, union avoidance, equal employment opportunity, OSHA compliance, disability accommodation, non-compete agreements, and issues relating to employee…

Keith Covington practices labor and employment, immigration, and construction law in the firm’s Birmingham office. He counsels employers on a wide variety of topics, including labor relations, union avoidance, equal employment opportunity, OSHA compliance, disability accommodation, non-compete agreements, and issues relating to employee discipline and termination. His immigration practice includes worksite compliance and obtaining employer-based non-immigrant and immigrant visas for foreign national employees.

Photo of Anne R. Yuengert Anne R. Yuengert

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and…

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators, administrative law judges and federal and state court judges. She has tried more than 30 cases to verdict.