ICE Releases Guidance Relaxing I-9 Requirements For Certain Employers

The US Department of Homeland Security (DHS) has issued guidance that provides flexibility for certain employers to comply with Form I-9 requirements due to COVID-19.

Which employers does the new guidance apply to?

The relaxed requirements apply only to employers and workplaces operating remotely due to COVID-19. If there are employees physically present at a work locations, no exceptions will apply. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis.

What options does the new guidance offer?

This provision removes the requirement that employers review the employee’s identity and employment authorization documents in the employee’s physical presence. However, the employer must:

  • Inspect Section 2 documents remotely (e.g., over video link, fax or email, etc.) within three business days of work for pay;

  • Retain copies of the documents;

  • Add “COVID-19” as the reason for physical inspection delay in the Section 2 field once physical inspection takes place after normal operations resume and add “documents physically examined” with the date of inspection in the Section 2 additional information field on the Form I-9 (or section 3 if applicable);

  • Conduct in-person verification of identity and employment eligibility documentation within 3 business days of normal operation of business; and

  • Retain written documentation of their remote onboarding and telework policy with the Form I-9 for each employee.

Additionally, the Department of Homeland Security will allow employers to designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign the Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or verification process, including any violations of the employer sanctions laws committed by the person to act on the employer’s behalf.

When, and for how long, is the new guidance effective?

This updated guidance may be implemented for a period of 60 days, starting today, or within 3 business days after the termination of the National Emergency, whatever comes first.

Please contact your Baker McKenzie attorney for more information.

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