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03.24.20

E-Verify and I-9 requirements temporarily relaxed due to COVID-19

BY Jason Gerrol

What are the relaxed Form I-9, Employment Eligibility Verification, requirements?

As a general rule, U.S. employers must use Form I-9 to verify the identity and employment authorization of new employees, and to do so, the employer must physically examine original documents in the physical presence of the employee. As a result of COVID-19, on March 20, 2020, the Department of Homeland Security (DHS) announced this requirement is being temporarily relaxed, and employers that are operating remotely as a result of COVID-19 will no longer be required to review an employee's identity and work authorization documents in the employee's physical presence, and inspection of documents can be handled remotely (e.g., by video, fax, or email). The relaxed requirements will be implemented for a period of 60 days from the announcement date, or three business days after the end of the National Emergency declaration, whichever comes first.

Employers are still required to inspect copies of documents and complete the employment verification process within the required three business days of the date of hire. In addition, when "normal operations resume," all employees who utilized remote verification must report to the employer within three business days for the required "in-person" examination of documents. Employers should enter "COVID-19" as the reason for delay of the required physical inspection, followed by "documents physically examined" and the date of inspection in Section 2 of the Form I-9 (or Section 3 if reverification applies).

The announcement states the relaxed requirements only apply to employers who are operating remotely, and "[i]f there are employees physically present at a work location," the in-person physical inspection exception does not apply. Furthermore, "[e]mployers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy" during this time.

In addition, any employer who has been served a Notice of Inspection (NOI) by DHS during March 2020, and has not already responded, will be granted an extension of 60 days.

What are the temporary E-Verify requirements?

According to a recent announcement, employers enrolled in E-Verify are still required to create cases for new employees within three business days of the date of hire. However, if case creation is delayed as a result of COVID-19, an employer may enter "COVID-19" as the reason for delay.

In addition, should there be a discrepancy between the information provided by the employee and Social Security Administration (SSA) records, and an SSA Tentative Nonconfirmation (TNC) is issued, DHS will extend the time an employee is granted to resolve the discrepancy in light of the closure of SSA offices to the public. However, only in "limited circumstances" will an employee be granted an extension of a DHS TNC due to public or private office closures.

New Form I-9 issued

Finally, employers are reminded that starting May 1, 2020, employers may only use the 10/21/19 edition of Form I-9 (the edition date can be found at the bottom of the form).

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Jason Gerrol

Of Counsel

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