The coronavirus pandemic presents a number of challenges for businesses adding new members to their teams. Social distancing, contactless exchanges and remote work may complicate the typical onboarding process, which includes Form I-9 employment verification. To accommodate employees during this unprecedented time, the United States Citizenship and Immigration (USCIS) issued guidance on March 20 and May 14, 2020 that offers some flexibility around Form I-9 requirements in light of the health and safety protocol businesses must implement.
Remote viewing of I-9 supporting documents temporarily permitted
USCIS requires a number of documents to be presented by a potential hire and physically inspected by the employer as part of the Form I-9 process. Electronic or remote viewing are not permitted. Since this may not be possible during the pandemic, USCIS approved a temporary provision to allow remote review and inspection of documentation through video calls, fax, email, etc. through July 19, 2020. Employers are still required to review and inspect these documents within three business days of an employee’s first day of paid work and maintain these copies or recorded video calls. To qualify for temporary remote viewing, each of the following conditions must be met:
- Employee’s first day of work (or recertification of documents) is no earlier than March 19, 2020.
- Employer has implemented changes in employee physical proximity due to COVID-19.
- Workplace is operating remotely and no employees are physically present at a work location (employees subject to a COVID-19 quarantine or federal, state or local mandate for quarantine or isolation order will be evaluated on a case-by-case basis).
- Written documentation of the process and procedure for remote employee onboarding as the well as a teleworking policy.
- Once the business reopens for on-site employees, the three business day timeline for physical review resumes.
To document the remote viewing process on Form I-9, employers should enter “COVID-19” as the reason for the physical review delay in the Additional Information box on Section 2 and follow up by adding the eventual date when physical inspection took place within three business days of an employee’s first day of paid work as mentioned above.
Form I-9 change
On January 31, 2020, USCIS released the final approved version of Form I-9, which expires on October 31, 2022. The new form took effect on May 1, 2020, and employers must now use the latest version. In addition to minor adjustments to the Country of Issuance and Issuing Authority fields, the new Form I-9 also includes the following significant changes to the instructions for employers overseeing the employment verification process:
- Provided clarifications on acceptable documents for Form I-9
- Updated the process for requesting paper Forms I-9
- Clarified who can act as an authorized representative on behalf of an employer
Form I-9 reminders for employers
- A Form I-9 must be on file for any current employee hired after November 6, 1986.
- Form I-9s should be maintained in a separate file (paper or electronic) for three years after the date of hire, or for one year after employment is terminated, whichever is later. Make this purge part of your year-end housekeeping process.
- The Form I-9 file must be available for inspection if requested by authorized U.S. government officials from the Departments of Homeland Security, Labor or Justice.
- The Spanish version of the Form I-9 can only be used as the official document in Puerto Rico. It must only be used as a reference for Spanish-speaking employers and employees in the 50 states and other U.S. territories.
- Employers may not ask an individual to complete Section 1 before he or she has accepted a job offer, nor can an employer recommend or provide guidance on required documentation beyond providing the list of acceptable documents (for example, do not say “just bring your Social Security card and driver’s license”).
- Employers are not required to keep photocopies of the supporting documentation unless they e-verify, but must be consistent.
- Pay attention to documents that expire and communicate with the employee.
- If a Social Security card is provided, look closely to see possible wording at the top, and process the documents accordingly:
- Valid for work only with DHS authorization
- Valid for work only with INS authorization
- Not valid for employment
Employers face monetary penalties for Form I-9 noncompliance, so proper administration and records maintenance is essential. The USCIS I-9 widget is a free and effective tool for accurately completing the employment verification process. RKL’s Human Capital Management team is available to help with Form I-9 administration, evaluate compliance or advise with other aspects of the onboarding process. Contact your RKL advisor to start the conversation or reach out to using the form below.