DHS Announces Flexibility in Form I-9 “Physical Presence” Requirement During COVID-19

In response to measures taken by many employers to limit physical proximity and slow the spread of COVID-19, on March 20, 2020, the Department of Homeland Security (DHS) temporarily deferred the “physical presence” requirements for Form I-9 completion.

Employers who are operating remotely may inspect a new employee’s identity and work authorization documents remotely, such as via webcam or email, to complete the employee’s Form I-9. The guidance states that employers must then physically inspect the Section 2 documents and update the Form I-9 within 60 days of the March 20 DHS notice or within three business days of either the resumption of normal business operations or the termination of the national emergency, whichever comes first.

Employers wishing to comply with the relaxed standard must also take the following steps:

• Inspect and retain electronic copies of the Section 2 documents within three business days of hire.
• For each employee, provide written documentation of the employer’s remote onboarding or teleworking policy.
• Once the Section 2 documents have been physically inspected, add “documents physically examined” with the date of physical inspection to the Section 2 additional information field on the Form I-9. Employers should also put “COVID-19” in the additional information field as the reason for delay of physical inspection.

Note that the deferral applies only to employers who are operating remotely. Employers with employees physically present at the workplace generally will not receive exceptions unless a newly hired employee is subject to COVID-19 quarantine or lockdown, and such exceptions will be assessed on a case-by-case basis.

In addition to the remote-hire guidance, DHS also announced that, effective March 19, any employers who received a Notice of Inspection this month and have yet to respond will be granted a 60-day automatic extension.

McGuireWoods will continue to monitor Department of Homeland Security notices for further developments and will provide an update in the event new guidance or a longer deferral is required.

For questions or additional guidance on these recommendations and other COVID-19 considerations, please contact any of the McGuireWoods COVID-19 Response Team members.