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Staying Compliant With Employment Eligibility Verification in the Age of Social Distancing

March 19, 2020

The onset and aftermath of the novel coronavirus/COVID-19 has impacted nearly every aspect of human life. The I-9/Employment Eligibility Verification protocols that American human resources professionals must manage are no exception. Based on regulations primarily written in the 1980s that mandate some degree of person-to-person contact during the onboarding process, I-9/Employment Eligibility Verification compliance does not easily fit into the social distancing culture that is the new normal.

There is no firm guidance on how employers can strictly comply with I-9/Employment Eligibility Verification regulations in this unique era that has caused many employees to work (and seek work) remotely to contain the virus. Notwithstanding, here are some practical I-9/Employment Eligibility Verification compliance considerations for businesses that hire during the COVID-19 pandemic.

Can an employee complete I-9 Form Section 1, remotely?

While there is no specific guidance from USCIS, the language of the I-9 suggests the answer is most likely, yes. Newly hired employees must complete and sign Section 1 no later than the first day of employment. Businesses who onboard remotely during COVID-19 could consider emailing Form I-9 to the new hire for completion. After the employee completes Section 1, the signed copy can be returned to the employer by email. The physical copy can be returned to the employer by U.S. Mail or commercial carrier.

But how should we complete I-9 Forms for employees who will start at a later date?

Given the rapid spread of the novel coronavirus, many businesses will not resume normal operations in the short term, so employers can reasonably expect to have start dates that may trail the dates of hire during the novel coronavirus pandemic. Section 2 of the Form I-9 includes two spaces that require dates. These spaces are for: (1) the employee’s first day of employment ( “date of hire” which means the commencement of employment of an employee for wages or other remuneration); and (2) the date the employer examines the documentation an employee presented to show identity and employment authorization. Employers who onboard during this global pandemic should simply fill in the dates that apply in the certification block provided in Form I-9, Section 2. In all cases, Section 2 must be completed within three days of hire.

Can we continue to employ foreign-nationals whose employment authorization documents expire during COVID-19?

It depends. Because many USCIS offices are now closed and it is unclear how COVID-19 might impact USCIS’ ability to timely renew employment documents, many employees may not be able to present proof of employment authorization renewal when their documents expire during this global pandemic. But the law is clear that the only employees allowed to work are those with unexpired employment authorization documents or those who are in applicable grace periods. If COVID-19 causes employment authorization renewal delays, employers should consult with counsel on the status of impacted employees.

How can my company practice social distancing if the guidance requires that we personally review employment eligibility documents?

At present, it seems employers cannot strictly comply with I-9/Employment Eligibility Verification obligations in this social distancing scenario. Specifically, the current interpretive guidance states: “when completing Form I-9, the employer or authorized representative must physically examine, with the employee being physically present, each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam is not permissible.” This textbook Catch 22 is one of the most challenging aspects of human resources management during the global pandemic. On the one hand, U.S. employers are urged to promote social distancing to contain the novel coronavirus and protect their workforce. But on the other hand, this discreet area of employment law dictates that businesses come into direct contact with new hires in scenarios where the illness might be passed.

So how can we limit COVID-19 workplace exposures while complying with the I-9 regulations?

The short answer is “at a distance.” I-9/Employment Eligibility Verification compliance only requires employers to physically review the documents while the employee is present. To mitigate the health risks associated with compliance, human resources professionals could consider dedicating a specific worksite space where new hires would present documents. In that scenario, only those employees who are essential to the I-9/Employment Eligibility Verification process would be present for document review. When those documents are reviewed, human resources personnel would observe a “look, but don’t touch” approach. Although many employers have made copies of employment eligibility documents as a matter of policy during times where global pandemic was not an issue, surface contamination concerns have brought those practices into substantial doubt. Employers are not required to copy documents for purposes of I-9 verification. Accordingly employers may review the documents and defer copying until the COVID-19 curve flattens to acceptable risk thresholds.

Can we cure I-9 infractions after COVID-19 ends?

USCIS provides guidance on how employers might correct technical errors. The novel coronavirus/COVID-19 pandemic has forced all U.S. employers to operate in unchartered territory. In scenarios where normal Form I-9 technical protocols simply cannot be observed due to the global pandemic, employers should work to preserve the “good faith” defense by regularizing the technical aspects of I-9 processing as soon as the curve flattens.