Temporary I-9 Procedure for New Hires and Reverifications that Cannot Report to the Worksite

On March 20, 2020, DHS announced temporary COIVD-19 flexibility for employers to complete an I-9 for new hires or reverifications using video, e-mail, or fax review of their work authorization documents.  Then when normal operations resume, the company must verify the individual and their original documents in person within 3 business days.  Alternatively, an employer can still designate an authorized individual unrelated to the company to physically review the documents and complete Section 2 on their behalf.

Where the employee cannot physically come into the office due to the COVID-19 emergency, DHS is allowing a temporary video review of the work authorization documents, or by e-mail or fax.  The employee would still complete Section 1 by the first day of hire and e-mail a scanned copy to the employer along with their work authorization documents.  The employer would then print and sign Section 2 by the 4th day of hire.  Then when the company returns to normal operations, they must reverify the original documents in person with the employee within 3 business days.

Section 2 of the I-9 "Additional Information Box" found on Page 2 should be notated "COVID-19" for the initial remote review.

Then for the late in-person review when the employee returns to the office the employer should notate in the Additional Information Box "Documents Physically Examined on X date / COVID-19" and the employer can sign and date next to it.

This procedure is expected to last for 60 days or if the national emergency is cancelled sooner, then for 3 business days after the cancellation.  For more information, see: https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance.

E-Verify Relief for Tentative Non-Confirmations

DHS announced on March 21, 2020 that E-Verify is extending the timeframe for a new hire to take action to resolve Tentative Nonconfirmations (TNCs) due to the office closures of the Social Security Administration and U.S. Citizenship & Immigration Services due to COVID-19.

Employers must use the hire date from the employee's Form I-9 when creating the E-Verify case.  If the case creation is delayed due to COVID-19 precautions, select "Other" from the drop-down list and enter "COVID-19" as the specific reason.  For more information, see: https://www.e-verify.gov/about-e-verify/whats-new.

Note:  As you are aware, due to COVID-19, things are changing quickly.  The above discussion represents our best interpretation of where things currently stand with I-9's and E-Verify.  For more guidance and updates, please contact your Sheppard Mullin attorney.

For more legal insights visit our  Coronavirus (COVID-19) page.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.