With employers and employees continuing to take physical distancing precautions in response to COVID-19, U.S. Immigration and Customs Enforcement (“ICE”) has again extended the ability of employers to remotely verify a new employee’s identify and employment authorization documents for Form I-9 purposes through September 19, 2020, so long as the employer continues to have its employees working remotely. 

Normally, immigration regulations require that employers physically inspect a new employee’s identity and work authorization documents when completing Form I-9, Employment Eligibility Verification, but since March 19, 2020, ICE has suspended the physical inspection requirement and began allowing remote verification of identity documents. 

What is the New Protocol for Completing Form I-9s if Employers Have a Work-from-Home Policy?

Employers who continue to implement work-from-home policies due to COVID-19 do not need to review the employee’s identity and employment authorization documents in-person with the employee.  

Instead, employers are required to:

• Inspect Form I-9, Section 2 documents remotely (e.g. over fax, video, email, etc.)

• Obtain, inspect, and retain copies of the documents within 3 business days 

However, employers should physically inspect the identity and employment authorization documents in the presence of the employee within 3 business days of resuming normal operations at the workplace.  

Form I-9 Verification During EAD Production Delays

US Citizenship and Immigration Services (USCIS) has announced that due to the production delay of Employment Authorization Documents (EADs), new hires or current  employees  may present the approval notice for the Form I-765, Application for Employment Authorization,  in lieu of the EAD card for purposes of showing authorization to work until December 1, 2020.  Employers may use the approval notice, which comes on Form I-797, Notice of Action, as a List C document for I-9 compliance.  The approval notice should have a notice date on or after December 1, 2019 to be accepted. 

By December 1, 2020, employers must reverify employees who presented their I-765 approval notices as a List C document with new evidence of employment authorization from either List A or List C or with their new EAD card.  

For more information on DHS’s temporary guidance, please see the full DHS announcement. 

This alert is for informational purposes only.  Please contact us if you would like to discuss this development further.