By Karen Kett
Due to physical distancing precautions being implemented by employers as a result of COVID-19, on Friday, March 20, 2020, the Department of Homeland Security (DHS) announced it will exercise discretion to defer the physical presence requirements of documents presented by new hires as part of the Form I-9, Employment Eligibility Verification process. However, employers must comply with the following:
Inspect the Section 2 documents remotely via video, fax, e-mail, etc. and obtain, inspect, and retain copies of the documents within three days after the date of hire.
Employers should then include “COVID-19” as the reason for the physical inspection delay in the Section 2 “Additional Information” box.
Once normal operations at the employer resume, a physical inspection of the documents must take place, and a second notation in the “Additional Information” box should be made stating “documents physically examined” and the date of physical examination.
Employers may only use this delay of physical examination option for 60 days from March 20, 2020, or three days from the termination of the National Emergency, whichever comes first.
Employers who use this delayed physical inspection option must provide written documentation of their remote onboarding and telework policy for each employee, and retain that with the Form I-9 to submit in the case of an I-9 audit.
This may only be used by employers who are operating remotely. If there are employees physically present at a work location, there are no exceptions to the physical inspection requirement, unless the newly hired employee or existing employees are subject to COVID-19 quarantine or lockdown protocols.
Note that an employer designated authorized representative may complete Section 2 of the Form I-9.
More information regarding the Form I-9, including the current version of the Form I-9, can be found here.
More information on Clark Hill’s Internal Form I-9 Audit Assistance can be found here.
The full text of the DHS announcement can be found here.
DHS Announces Extension of Time to Respond to a Notice of Inspection Forms I-9s
DHS announced on March 20, 2020, that effective March 19, 2020, if any employer was served a Notice of Inspection requiring that the employer submit its Form I-9s and/or other company documentation, and the employer has not yet responded to the Notice of Inspection, the Employer would be granted an automatic extension of 60 days from the effective date. Additional extensions would be reviewed, if necessary, at the end of the 60 day period.
The full text of the announcement can be found here.
E-Verify Announces Extension of Time for Tentative Nonconfirmation Response
Due to the closure of Social Security Administration (SSA) offices to the public, E-Verify announced on March 20, 2020, that it will extend the timeframe to take action to resolve SSA based Tentative Nonconfirmations (TNCs). E-Verify is also extending DHS TNCs in limited circumstances where the employee cannot resolve a TNC due to public or private office closures. Employers must comply with the following:
Employers must still create an E-Verify case within three business days from the date of hire, using the hire date from the Form I-9.
If case creation is delayed due to COVID-19 precautions, selected “Other” as the reason for the delay in the drop-down list and enter “COVID-19” as the specific reason.
If a TNC is issued, employers must still notify employees if they are issued a TNC as soon as possible. If the employee decides to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice and the employer should notice E-Verify of the employee’s decision.
Employers cannot take any adverse action against an employee who is in an interim case status, even if that interim status is extended.
More information regarding E-Verify can be found here.
The full text of the announcement can be found here.
For more information, contact Clark Hill immigration attorney Karen Kett.