Note: The temporary policy discussed below was extended until July 31, 2023. Employers were given until August 30, 2023 to perform all required in-person physical examinations of documents for those individuals who have only received a virtual or remote examination under the temporary policy. A more recent Tip of the Week on completing I-9s for remote employees, can be found here.
The Form I-9 is used to verify a new hire's identity and work authorization. Employers must ensure that each employee properly completes the I-9 at the time of hire. Completing an I-9 can be more complicated for employees who are working remotely due the COVID-19 pandemic. Here are some guidelines for completing the I-9 for remote workers.
I-9 basics:
The Form I-9 is broken out into multiple sections:
|
Section name |
Section overview |
Completion deadline |
|
Section 1 |
Employee must complete and attest that they are authorized to work in the U.S. |
The employee's first day of work for pay |
|
Section 2 |
Employee must present certain identity and work authorization documents. The employer must examine the document(s) to determine whether they reasonably appear to be genuine and relate to the employee. Employers must record the document number(s) in Section 2. |
Within 3 business days |
|
Section 3 |
If an employee's employment authorization expires, they must present new or updated document(s) and the employer must examine and record the document number(s) in Section 3. Employers may also be required to complete this section when rehiring a former employee, depending on how much time has passed. |
No later than the date employment authorization expires |
|
List of Acceptable Documents |
This section does not need to be completed. It's for informational purposes only. |
Completing section 2 for remote workers:
Employers must generally inspect Section 2 documents in the employee's physical presence. Reviewing or examining documents via webcam or some other remote means isn't generally permissible (see Limited Exception Due to COVID-19 below). Before the COVID-19 pandemic, employers typically either asked the new hire to come to the workplace for this purpose or the employer designated an authorized representative, such as an attorney or notary public, to fill out Section 2 on behalf of the company.
If you designate an authorized representative, state law may restrict who can complete the I-9 on your behalf. For example, California limits such services to licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals qualified and bonded as an immigration consultant under state law. Employers should also keep in mind that they are ultimately responsible for any I-9 violations.
When completing Section 2, the employer or authorized representative must examine (with the employee physically present) each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. When examining documents, employers should consider safety measures to protect both parties from COVID-19, such as health screenings, physical distancing, and masks while taking into account federal, state, and local health guidelines.
Temporary exception due to COVID-19:
Earlier this year, the Department of Homeland Security (DHS) announced that employers temporarily will be allowed to inspect Form I-9 documents remotely in certain COVID-19 related situations. However, these procedural changes expire on May 31, 2021.
Covered employers:
The temporary changes applied only to employers and workplaces operating remotely as a result of COVID-19. If there are employees physically present at a work location, no exceptions apply.
Temporary changes:
Until May 31, 2021, covered employers with employees taking physical proximity precautions due to COVID-19 are temporarily exempt from the requirement to review the Section 2 documents in the employee's physical presence. Instead, employers could inspect the Section 2 documents remotely (such as, over video link, fax or email) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. For an example of how to notate the I-9 for remote inspection click here.
Once normal operations resume:
Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9. Once acceptable documents have been physically inspected, the employer should add "documents physically examined" with the date of inspection to the additional information field in Section 2, or to Section 3 as appropriate. Enter "COVID-19" as the reason for the physical inspection delay. The USCIS provides an example here. If the person who performed the remote inspection can't also perform the physical inspection, the individual who performs the physical inspection should indicate the date they physically examined the documents as well as their full name and title in the Additional Information field.
Conclusion:
Employers must ensure they complete and retain a valid I-9 for each new hire, regardless of whether the employee works in the traditional workplace or remotely. Employers should also review their onboarding practices to ensure compliance with I-9 requirements and to prevent the spread of COVID-19.