UPDATE: May 14, 2020: ICE will allow employers to review Form I-9 documents remotely for an additional 30 days, it announced May 14. The original exemption was set to expire May 19.
- Employers with employees taking physical proximity precautions due to the novel coronavirus need not review the employee's identity and employment authorization documents in the employee's physical presence for Form I-9, U.S. Immigration and Customs Enforcement (ICE) announced March 20.
- Employers may first inspect Section 2 documents remotely, ICE said, (using, for example, video, fax or email) "and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2." Once normal operations resume, employers must inspect documents in person and note "COVID-19" as the reason for the delay in the section's "additional information" field, as well as "documents physically examined" with the date of inspection to that field or Section 3 as appropriate, ICE said.
- "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," the agency said. Additionally, employers who make use of the exception must provide written documentation of their remote onboarding and telework policy for each employee. Additionally, the exception is only available to employers and workplaces operating remotely. "If there are employees physically present at a work location, no exceptions are being implemented at this time[.] 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."
Employers were asking for such an exception in light of COVID-19 shutdowns, Susan J. Cohen, founding chair of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo's immigration practice, told HR Dive in an interview before the exception was granted. "I'm getting more questions about this topic than many other things right now from clients," she said.
Cohen previously predicted that such a move could include options from permission to review documents remotely to an exception to the three-day window. While the change was considered unlikely due to the administration's strict stance on immigration, employers were somewhat hamstrung. Since the form was mandated in 1986, "we've not faced a situation like this," Cohen said; "it's completely unprecedented."
Employers not eligible for the exception still have options, however. The form allows an employer to appoint a representative to review new hires' documents. This can be a law firm, a vendor, a notary or a local employee, among others. Any employee can perform document inspection for HR, Cohen explained. During normal times, that's not a best practice but "in exigent times like these, employers can provide training inside and outside the company."