Use New Form I-9 By May 1; Guidance on I-9 and Verification Issues Related to COVID-19

Posted by: Gail Whaley on Friday, March 27, 2020

The United States Citizenship and Immigration Services (USCIS) released the newly updated Form I-9 early this year.  The new version bears a revision date of 10/21/2019 (bottom left corner) and an expiration date of 10/31/2022 (top right corner).. The Form I-9 Instructions have also been updated.

Starting May 1, employers can only use the 10/21/19 version. Prior versions of the form will be unacceptable after May 1.

Remember all U.S. employers must properly complete the Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers must complete the form.

The new version contains only minor changes to the form and its instructions

DHS Introduces Guidance on Completing Form I-9 During the COVID-19 Crisis

On March 20, the Department of Homeland Security issued guidance on completing I-9s during the COVID-19 crisis.

Due to social distancing requirements, hires, DHS has temporarily halted the requirement that employers physically review employee identification and employment authorization documents when completing the Form I-9.

The following is the direct guidance from DHS:

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. 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. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume.

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 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 the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first.

Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.

Once normal operations resume, all employees who were onboarded 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, Employment Eligibility Verification. 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 on the Form I-9, or to section 3 as appropriate.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

This provision only applies to employers and workplaces that are operating remotely. 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, Employment Eligibility Verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.

Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.”

Going forward DHS will continue to monitor the ongoing National Emergency and provide updated guidance as needed. Employers are required to monitor the DHS and ICE websites for additional updates regarding when the extensions will be terminated, and normal operations will resume.

Need Help with Your I-9s? CEA is here for you!

Make sure you meet your Form I-9 compliance obligations…audit your I-9s! CEA can provide you with an onsite audit to make sure you are following I-9 requirements and best practices. Schedule an I-9 audit by calling 1-800-399-5331 or email ceainfo@employers.org. Members can also review our reference materials on Forms I-9 in the HR Answers section of our website.

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