March 20 update: The U.S. Department of Homeland Security (DHS) announced that it will defer the physical presence requirements associated with reviewing Form I-9 documents for employers and workplaces operating completely remotely.
The information in this article is still relevant for organizations with partially remote workforces or those with completely remote workforces that wish to proceed with the standard Form I-9 employment verification process using third-party representatives.
Employers across the country are asking employees to work from home to stop the spread of coronavirus—but these employers must still meet their obligations for verifying employment authorization, which requires an in-person examination of documents.
U.S. Citizenship and Immigration Services (USCIS) stated that it is not changing its policy requiring the employer or authorized representative to examine—with the new hire physically present—identification documents to determine if they appear to be genuine.
"As of this time, this and all other Form I-9 requirements remain in effect," said Beth Carlson, an immigration attorney and counsel in the Minneapolis office of law firm Faegre Drinker. "Under long-established Form I-9 requirements, in order to complete Section 2 of Form I-9, the employer or the employer's authorized representative must physically examine either one List A document, or one List B document and one List C document in order to comply with the government requirements before signing the form under penalty of perjury. These are very strict requirements and can lead to severe penalties and fines if not followed."
The I-9 process has clearly not kept up with the times, said John Fay, president of the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration compliance services. "While the USCIS has recently
released a new version of the form, the actual steps for verifying employment eligibility are stuck in the 1980s. And there lies the challenge for employers who wish to onboard employees remotely as part of their comprehensive work-from-home coronavirus policy."
[SHRM members-only toolkit:
Complying with I-9 and E-Verify Requirements in the United States]
The Society for Human Resource Management asked the Department of Homeland Security, the parent agency of USCIS, to approve the temporary suspension of Form I-9 and related E-Verify completion-time requirements and temporarily allow virtual verification of identity and work-eligibility documentation.
Anyone Can Review the Documents
Some relief is provided to remote workers in that employers can designate anyone to review the new hire's documents and complete and sign Page 2 of Form I-9. Employers typically rely on notaries, attorneys or local workforce agency staff to do this.
"Under the circumstances raised by COVID-19, USCIS will consider 'any person' even to include a family or household member," said Diane Butler, an attorney in the Seattle office of Davis Wright. "The employer must take steps to ensure that the person understands the obligation and takes the responsibility seriously."
USCIS policy states that the employer is still liable for any violations in connection with the form or the verification process, regardless of who completes and signs it.
"Employers have broad discretion in this area as long as they remember that they are ultimately on the hook for any I-9 mistakes which may occur," Fay said. "In years past, employers have expressed some misgivings about designating a friend of the employee for verification purposes, due to the potential for bias or perceived conflict of interest that may exist. And, to be clear, this option may not be advisable for all employers, based on their audit history and other factors. But for many others, the 'find a friend' method provides a perfectly reasonable solution to a vexing problem that is even more pronounced in light of the coronavirus outbreak."
There are some state-based restrictions on who may act as the employer's authorized representative, noted Alonzo Martinez, associate counsel for compliance at background-screening provider HireRight. "For example, in California, only state-licensed public notaries or bonded immigration specialists may complete Form I-9 on behalf of the employer," he said.
And, Faegre Drinker attorney Carlson noted, ultimately the problem remains that the new hire must be physically present with the authorized person during the examination: "Even if using an employer's authorized representative, this must still be in person and cannot be completed by fax, scan, e-mail, FaceTime, Skype or webcam."
Fay said that once it's determined who will serve as the authorized agent, employers need to develop a clearly defined process for how the remote I-9 shall be completed. Detailed instructions should be sent to the employee and his or her representative.
"Make sure to provide both the new hire and the authorized representative with the phone number of someone at your organization who can answer any questions which might arise during the verification process," Fay said. "Addressing I-9 issues in real time can save you hours of work later on."
Be sure to review remotely completed I-9s to make sure they are error free.
Using Electronic I-9 Systems
Fay said that another option is to use one of the smart electronic I-9 systems, which provide access to a network of remote I-9 completion centers throughout the U.S. "Participating employers can invite their newly hired remote employees to log in to the electronic I-9 system, complete Section 1 at their home, and then schedule an appointment at a nearby brick-and-mortar location that has personnel trained in I-9 compliance."
In an Emergency
If operations have largely shut down, another possibility to explore is having the new hire complete Section 1 of the I-9 remotely, and then delaying completion of the form until operations resume and Section 2 can be completed in person by the employer.
"This is not a cure for a late I-9 but may be a basis to mitigate against future sanction or penalty should there be an audit," said Michael Neifach, an attorney in the Washington, D.C., regional office of Jackson Lewis. "The option is less certain," he warned. "The employer will need to clearly document the reasons for the delayed completion of Section 2 in a memo to maintain with the I-9."
Looking Ahead
With more employers mandating remote work as the threat from coronavirus grows, it is possible that USCIS will temporarily waive current requirements, Carlson said. "The government may possibly relax these or other in-person requirements."
The ongoing crisis supports the argument that USCIS should come up with a new way to allow employers to remotely verify work authorization, said Ann Cun, founder and managing attorney of Accel Visa Attorneys, an immigration law firm in San Leandro, Calif. "One such method would be to allow teleconferencing during the I-9 document inspection and allow employees to fax or e-mail documents to employers for record-keeping."