Practicing Social Distancing Without Violating I-9 Employment Eligibility Verification Rules

Published 3.22.2020

The I-9 Employment Eligibility Verification process requires that employers verify a new hire’s original documents, in person, within three days of hire.  But given the COVID-19 (coronavirus) outbreak and many employers switching their workforce to remote work and telecommuting as much as possible, the in-person document review mandated by the I-9 regulations is obviously a challenge. 

So how can employers practice social distancing and still comply with the I-9 rules? On March 20, 2020, the Immigration and Customs Enforcement, Homeland Security Investigations (ICE/HSI), posted updated guidelines on completing form I-9 during the COVID-19 outbreak.

What is the general I-9 rule?

Whenever an employer has a new hire, the employee must fill out Section 1 of Form I-9 no later than the first day of employment.  The employer must then review the employee’s documents proving identity and employment verification within three days of hire.  The regulations require that the document verification be done in person, in the employee’s physical presence.

What are the I-9 exceptions due to COVID-19?

Employees and employers are still required to fill out Form I-9 by the usual deadlines (first/third day of hire, respectively).  However, employers who have employees taking physical proximity precautions may review the employee’s documents via video conferencing and obtain, inspect and retain copies of the documents within the usual 3-day period.  In addition, employers must enter “COVID-19” in Section 2, Additional Information box.  Once the employer resumes regular operations, the employer must review the employee’s documents in person, per standard procedure, then annotate the Additional Information box in Section 2 of Form I-9 to state “documents physically examined” and write the date of in-person inspection.

Can all employers use the remote verification process during the pandemic?

No. The exception to in-person verification only applies to employers and workplaces that are operating remotely as a result of the pandemic.  If there are employees physically present at a work location, no exceptions apply and the standard in-person verification remains in effect, unless a new hire is subject to quarantine, on a case-by-case basis.  In addition, in the event of an audit, employers who used the remote verification process during the COVID-19 National Emergency will be required to provide written documentation of their remote onboarding and telework policy for each employee.

How long can employers use the remote document review process?

Employers may use the remote review procedure for 60 days from the date when ICE announced it (March 20, 2020), or no later than three days after the National Emergency ends, whichever is earlier.  These time frames may be subject to change as the COVID-19 outbreak continues to develop.

Are there any changes to E-Verify requirements during the pandemic?

For employers enrolled in E-Verify, all general rules still apply.  If an employer is unable to create an E-Verify case within three days of hire per the standard requirement and the delay is related to COVID-19, the employer should select “Other” from the drop-down list and enter COVID-19 as the specific reason.

If the system generates a Tentative Non-confirmation (TNC) result, the employer must still notify the employee and follow the standard procedure for TNCs.  However, the Department of Homeland Security (DHS) indicated that it is extending the timeframe to resolve TNCs related to SSN mismatch, where the Social Security Administration has closed its offices to the public in response to COVID-19.  The period to resolve TNCs related to information within the DHS system (rather than SSA) may also be extended, if the employee is not able to contact the applicable DHS office due to a public closure.

As always, employers are prohibited from taking any adverse action against employees because the E-Verify case is in an interim status, even if the interim status is extended under the COVID-19 exceptions.

We will continue to monitor these developments and will provide periodic updates.  If you have any immigration-related questions in general, or specific to the state of U.S. immigration during the coronavirus outbreak, please contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or 608-252-9291.