The pandemic brought total upheaval to U.S. workplaces. Some of the changes it caused, from widespread remote work to flexible scheduling, may become the norm, even as coronavirus cases dwindle. But for Raymond Lahoud, member at Norris McLaughlin, employers need to take note of what's not going to change: the need to complete Form I-9 in person.
Form I-9 verifies an employee's authorization to work in the U.S. Every employer must have one for every employee, and it's mandated that the form must be completed within three business days of an employee's start date. As such, Form I-9 process is usually part of employee onboarding.
The coronavirus created a wrinkle in that process. Employers must review and verify the information employees give on Form I-9 by examining workers' documentation. If an employee can't present the documents — U.S. Citizenship and Immigration Services lists which ones are acceptable on the form — or presents false documents, employers can't make the hire.
Employers were required to complete this step in person until U.S. Immigration and Customs Enforcement temporarily amended that rule in March 2020. Now, employers are allowed to inspect documents remotely if they aren't able to examine them in person due to the pandemic. They can use video, fax or email to inspect the documents initially before obtaining, inspecting and filing copies of the documents within three business days of an employee's first day.
It's crucial employers remember that their ability to review documents remotely will end. When employers return to workplaces, Lahoud said, they must reevaluate their hiring and onboarding processes.
The pandemic has created lasting change in work arrangements. Companies are announcing plans to abandon physical worksites or implement a hybrid solution. These changes have brought much of the hiring and onboarding process online, but Form I-9 can't go virtual, Lahoud said. "The I-9 form is the one thing that can't be done through fax," he said.
Employers with virtual onboarding have two options to review the forms when the temporary allowance lifts, Lahoud said. They can ask employees to travel to a worksite within the first three days of their employment. Or they can ask someone to conduct the review on their behalf. Many of Lahoud's clients have contracted with a network of notaries who go to new hires, conduct the verification and mail in the form. Employers can also ask the new hire to find someone — a partner, a roommate or a neighbor, for instance — to authorize the form. "It could be anyone," Lahoud said.
This option invites risk into the equation, according to Lahoud. An employer's use of uninformed authorized agents may lead to document fraud, incomplete forms, untimely review and other issues for which the employer would be held liable. "The employer must ensure that the agent knows how to properly complete the form and review the documents for authenticity and to confirm that the identity documents relate to the newly hired employee," Lauhoud said.