I-9 Certification During COVID-19

Compliance with I-9 requirements can be frustrating and challenging for employers during the best of circumstances. Current employment laws require that employers verify identification and employment documents in the physical presence of the new employee within three days of starting employment. On a good day this can be difficult; with a global pandemic, organizations are facing the need for new employees and, with that, the need to certify new I-9 forms.

Fortunately, the federal government has acknowledged some of the challenges employers are dealing with in the face of COVID-19 and social distancing. Because of this, they have relaxed requirements around the I-9 for the time being; the Department of Homeland Security (DHS) has announced that employers with employees taking “physical proximity precautions due to COVID-19” will not be required to review documents in the physical presence of an employee at this time. This allows some flexibility when hiring a new employee, but ultimately I-9s will need to be completed, verified, and certified.

During the COVID-19 crisis, employers may inspect the Section 2 documents remotely (e.g., over video, fax, email, etc.). This must still occur during the first three days of employment. 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 until approximately May 20th or within 3 business days after the termination of the National Emergency, whichever comes first. That is, once normal operations resume, employers must review, verify, and certify the I-9s of all employees who were on-boarded using remote verification within three business days.

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. 

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