In welcome news for employers, the U.S. Department of Homeland Security (DHS) has once again agreed to extend its exercise of discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) until August 19, 2020. The guidance provides that employers exercising social distancing policies through remote telework due to COVID-19 will NOT be required to review the employee’s identity and employment authorization documents in the employee’s physical presence as is normally required.

This flexibility, however, only applies to employers that are fully operating on a remote basis. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis to allow for the application of the relaxed provisions.

Under the discretionary provisions:

• Employers may inspect the Section 2 documents remotely (e.g., over a video link, fax or email, etc.) AND obtain, inspect, and retain copies of the documents, within 3 business days for completing Section 2.
• Once normal operations resume, employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 “additional information” field
• Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.
• These provisions may be implemented by employers until August 19, 2020, OR within 3 business days after the termination of the National Emergency, whichever comes first.
• Employers who avail themselves of this option must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with employers.

For those employers that do not qualify under the discretionary DHS provisions, they are reminded that under the current regulations, employers may designate ANY authorized representative to complete Section 2 or 3 of Form I-9 on behalf of the company. Not only does this include personnel officers, foremen, agents, or notary publics, but also may include “friends and family” of the employee.  It is important to note, however, that the employer remains liable for any violations in connection with the form or the verification process. If an employer uses an agent under this provision, we recommend that the employer be virtually present via video conference to monitor the process and ensure that all required steps are completed.

Best Practices for I-9 Compliance

Our immigration team offers the top 10 (plus a bonus!) best practices for how to stay compliant with I-9 regulations:

1. Complete I-9 for all employees, including U.S. citizens, and keep them on file for all current employees
2. Have your employee complete Section 1 on his or her first day
3. Do not request more documentation than is required to show identity and employment authorization, or ask for a particular document to show identity or employment eligibility
4. You may complete I-9 early, but not before offer and acceptance
5. Promptly re-verify employment authorization 90 days prior to expiration
6. After employment ends, keep I-9s for at least three years from the date of employment or for one year after the employment ends, whichever is later
7. Conduct regular self-audits of I-9 files to find discrepancies or errors
8. Promptly destroy records that are not required to be maintained
9. Keep I-9 records separate from personnel files. This limits undue access by the government agencies with authority to inspect your I-9s
10. Keep copies of the documents presented by the employee with the I-9 form
11. Avoid “citizen-only” or “permanent resident-only” hiring policies unless required by law, regulation or government contract

Harris Beach has prepared summaries of document retention in the immigration context and I-9 compliance for your reference.

Remember: I-9’s can be retained in paper, microfilm, microfiche or electronic formats. You may keep completed paper forms on-site or off-site, as long as you can produce the I-9 forms within three days of an inspection request.

Harris Beach immigration attorneys perform I-9 and other audits of required employment records, advise on document retention and correction requirements, and offer training on completion and maintenance of I-9 records. For more insight into legal support for your immigration compliance, visit our Immigration practice page.

Because of the highly fluid and rapidly changing nature of the current immigration environment, we encourage you to regularly consult our website and subscribe to our Immigration Blog for more information about developing immigration issues.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.

This post does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.