UPDATE: As of March 20, 2020, the Department of Homeland Security has announced that employers may view Section 2 documents remotely (via fax, email, or webcam) for the purpose of completing Form I-9 within the requisite 3 business days of the employee’s date of hire.
Employers must enter “COVID-19” in the Section 2 Additional Information field as the reason for physical inspection delay once they have physically examined the documents in person after normal operations resume. After the documents have been examined, the employer must add “Documents Physically Examined” with the date of examination to the Section 2 Additional Information field (or Section 3 if applicable.)
These relaxed standards will remain in place until the earlier of May 18, 2020 or the termination of the National Emergency.
Many employers are hiring employees online, with the expectation that the employees will work from home. Employers’ offices are closed due to the COVID-19 outbreak, and new employees have nowhere to go to complete essential onboarding paperwork, particularly Form I-9.
Form I-9 verifies an employee’s identity and authorization to work in the United States and must be completed within three business days of the employee’s first day of work for pay. The employee and employer representative both must complete sections of the form, and the employer representative must examine documents from a list of acceptable documents to determine whether they appear authentic and relate to the employee in question.
One question we frequently hear as employment law attorneys is whether an employer representative must view the supporting documents in person, or whether they can be viewed by webcam or Skype. The Department of Homeland Security requires the employer representative to view the documents in person. The solution for many employers who hire remotely has always been to designate an agent, often a notary public, to view the documents and complete Section 2 of Form I-9.
In response to the COVID-19 outbreak, DHS has relaxed its rules somewhat, although it has not waived the in-person viewing requirement. Employers may now designate anyone, even a family or household member of the employee, to be its agent and view the documents and complete Section 2. The designee must be someone who can understand Section 2 and take it seriously.
Of course, the responsibility for correctly verifying identity and work authorization falls solely on the employer. If the designated agent does not correctly complete Section 2, or accepts improper documents, the liability will fall on the employer. Employers may decide it is more prudent to delay the employee’s start date until the employee can physically come into the office but for some, allowing a family or household member to be the designated agent and complete Section 2 can expedite hiring during the COVID-19 outbreak.
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